HB 1341

1
A bill to be entitled
2An act relating to onsite sewage treatment and disposal
3systems; amending s. 381.0061, F.S.; revising provisions
4for administrative actions by the Department of Health for
5violations relating to environmental health; increasing
6the amount of the administrative fine the department is
7authorized to impose for such violations; authorizing the
8department to issue citations for violations; providing
9requirements for such citations; providing that refusal to
10accept such citation constitutes a misdemeanor and is
11punishable under the law; requiring funds collected for
12violations to be deposited into the County Health
13Department Trust Fund; providing requirements for the use
14and distribution of such funds; providing alternative
15measures to the imposition of fines; providing for
16enforcement of noncompliance measures by the department;
17authorizing entrance to specified premises under specified
18conditions; providing freedom from liability for specified
19employees, agents, and consultants; amending s. 381.0065,
20F.S.; directing the department to implement a periodic
21inspections and pump-out program for onsite sewage
22treatment and disposal systems; providing program
23procedures and requirements; requiring system owners to
24pay a fee for inspections and pump-outs; increasing the
25amount of administrative fines the department is
26authorized to impose for violations relating to onsite
27sewage treatment and disposal systems; creating s.
28381.00656, F.S.; requiring the department to administer a
29grant program to assist owners in the repair of specified
30onsite sewage treatment and disposal systems; providing
31eligibility requirements; authorizing the department to
32prioritize applications; requiring the department to adopt
33rules; requiring the department to seek to award grants in
34each fiscal year to the extent of funds available and
35carry forward excess funds; amending s. 381.0066, F.S.;
36establishing fees for the filing of onsite sewage
37treatment and disposal system inspection reports;
38providing for deposit and use of the fees collected;
39amending s. 489.557, F.S.; revising the fees for septic
40tank contractor and master septic tank contractor
41registrations; providing for the distribution and use of
42fees collected; creating s. 489.561, F.S.; establishing
43the septic tank contractor advisory panel; providing for
44panel membership, duties, and reimbursement; reenacting
45ss. 381.0072(3)(a) and (5)(a), 381.0086(4), 381.0098(7),
46386.03(2)(d), and 513.10(2), F.S., relating to food
47service licenses, migrant farmworker and labor camp
48housing, standards for packaging, transport, storage,
49treatment, and disposal of biomedical waste, authority of
50the Department of Health and local health authorities to
51remove sanitary nuisances, and maintaining or operating a
52mobile home park, lodging park, recreational vehicle park,
53or recreational camp without a permit, respectively, to
54incorporate the amendment to s. 381.0061, F.S., in
55references thereto; providing an effective date.
56
57Be It Enacted by the Legislature of the State of Florida:
58
59     Section 1.  Section 381.0061, Florida Statutes, is amended
60to read:
61     381.0061  Administrative fines.--
62     (1)  In addition to any administrative action authorized by
63chapter 120 or by other law, the department may impose a fine,
64which shall not exceed $5,000 $500 for each violation, for a
65violation of s. 381.006(16), s. 381.0065, s. 381.0066, s.
66381.0072, or part III of chapter 489, for a violation of any
67rule adopted under this chapter, or for a violation of any of
68the provisions of chapter 386. Notice of intent to impose such
69fine shall be given by the department to the alleged violator.
70Each day that a violation continues may constitute a separate
71violation. A violation found on subsequent inspections shall be
72presumed to have existed between inspections.
73     (2)(a)  The department may issue citations that may contain
74an order of correction or an order to pay a fine, or both, for
75any violation for which the department may also impose an
76administrative fine; however, the department may only use a
77single method of enforcement for each violation.
78     (b)  Citations must be in writing and must describe the
79particular nature of the violation, including specific reference
80to the provisions of law or rule allegedly violated.
81     (c)  The citing official shall inform the recipient at the
82time the citation is issued, by written notice pursuant to ss.
83120.569 and 120.57, of the right to an administrative hearing to
84contest the citation. The citation must contain a conspicuous
85statement that if the recipient fails to pay the fine within the
86time allowed or fails to appear to contest the citation after
87having requested a hearing, the recipient has waived the right
88to contest the citation.
89     (d)  The department may reduce or waive the fine imposed by
90the citation after giving due consideration to such factors as
91the gravity of the violation, the person's attempts at
92correcting the violation, the recommendation of the septic tank
93contractor ethics advisory panel, and the person's history of
94previous violations, including violations for which enforcement
95actions were taken under this section or other provisions of
96state law.
97     (e)  A citation issued under this subsection constitutes a
98notice of proposed agency action. Any person who willfully
99refuses to sign and accept a citation issued by the department
100commits a misdemeanor of the second degree, punishable as
101provided in s. 775.082 or s. 775.083 In determining the amount
102of fine to be imposed, if any, for a violation, the following
103factors shall be considered:
104     (a)  The gravity of the violation, including the
105probability that death or serious physical or emotional harm to
106any person will result or has resulted, the severity of the
107actual or potential harm, and the extent to which the provisions
108of the applicable statutes or rules were violated.
109     (b)  Actions taken by the owner or operator to correct
110violations.
111     (c)  Any previous violations.
112     (3)  All amounts collected under this section shall be
113deposited into the County Health Department Trust Fund to be
114used to fund the septic tank contractors advisory panel pursuant
115to s. 381.0068. Any remaining funds shall be allocated to the
116environmental health program for which the fine was issued for  
117the purposes of program improvement, training, and staffing as
118determined by an appropriate trust fund of the department.
119     (4)  As an alternative to the imposition of a fine, the
120department may require attendance of training courses applicable
121to the violations committed and the use of best management
122practices currently used or recognized by the appropriate
123regulated industry or governmental agency.
124     (5)  Department personnel who have reason to believe
125noncompliance with requirements specified in s. 381.006(16), s.
126381.0065, s. 381.0066, s. 381.0072, or part III of chapter 489,
127or any provisions under chapter 386 exists may, at any
128reasonable time, enter the premises permitted under those
129sections and chapters to determine compliance with the
130requirements specified in this subsection. As used in this
131subsection, the term "premises" does not include a residence or
132private building. To gain entry to a residence or private
133building, the department must obtain permission from the owner
134or occupant or secure an inspection warrant from a court of
135competent jurisdiction.
136     (6)  In order to perform the requirements of this section,
137department employees may go on, over, and upon the lands of
138others when necessary and may carry with them any equipment,
139agents, consultants, and employees necessary for that purpose.
140Entry under the right granted by this subsection does not
141constitute trespass, and department employees, agents, and
142consultants so entering are not liable to arrest or to a civil
143action by reason of such entry. Due care shall be taken to not
144destroy, injure, or damage any physical improvements on the
145lands of others. Failure of any property owner to comply with
146this section shall be considered a violation of this chapter.
147     Section 2. Subsection (5) of section 381.0065, Florida
148Statutes, is redesignated as subsection (6) and reenacted,
149paragraph (b) of that subsection is amended, and a new
150subsection (5) is added to that section, to read:
151     381.0065  Onsite sewage treatment and disposal systems;
152regulation.--
153     (5)  PERIODIC EVALUATIONS.---
154     (a)  Effective August 1, 2009, the department shall
155implement, by rule, a program for periodic inspections and pump
156outs of onsite sewage treatment and disposal systems, excluding
157those systems that are required to obtain an operation permit.
158The program must include a schedule for a 5-year inspection
159cycle; a county by county implementation plan phased in over a
16010-year period with first priority given to those areas within
161an identified springshed protection area; an enforcement
162procedure for failure to inspect and failure to timely report
163inspection results to the department and the system owner; and a
164conflict of interest provision to prevent an inspector from
165conducting repairs associated with any deficiencies found during
166an inspection.
167     (b)  The department's Procedure for Voluntary Inspection
168and Assessment of Existing Systems shall be applied to
169inspections under this subsection, except as otherwise provided.
170All inspection procedures used by an inspector must be
171documented and nothing in this subsection limits the amount of
172detail an inspector may provide at their professional
173discretion. The inspection must include a tank inspection, a
174drainfield inspection, and a written assessment of the condition
175of the system, and, if necessary, a disclosure statement
176pursuant to the department's procedure.
177     (c)  If documentation of a tank pumping or of a permitted
178new installation, repair, or modification of the system within
179the previous 3 years is provided, and such documentation states
180the capacity of the tank and indicates that the condition of the
181tank is not a sanitary or public health nuisance, the department
182and the inspector shall waive the pumping requirements.
183     (d)  Owners are responsible for paying the cost of the
184inspection and pump out pursuant to department rule and may not
185request partial inspections or the omission of portions of the
186inspection.
187     (e)  Persons allowed to perform work under this subsection
188are master septic tank contractors, registered septic tank
189contractors, state licensed plumbers, and persons certified
190under s. 381.0101.
191     (f)  Prior to any inspection, the department must provide a
192minimum of 60 days' notice to owners that their system will be
193required to be inspected and pumped out. The notice must include
194a provision which states that the purpose of the inspection is
195to assess the fundamental operational condition of the system
196and identify any failure, and not to determine code compliance,
197require a complete upgrade or overhaul of a system to meet
198current code requirements, or require information demonstrating
199that the system will adequately serve the use to be placed upon
200it by the current or any subsequent owner. Included with the
201notice, the department must provide the owner of the system a
202copy of the Procedure for Voluntary Inspection and Assessment of
203Existing Systems.
204     (g)  As used in this subsection:
205     1.  "Failure" means an existing condition within an onsite
206sewage treatment and disposal system that prohibits the system
207from functioning in a sanitary manner and results in the
208discharge of untreated or partially treated wastewater onto
209ground surface, into surface waters or groundwaters, or results
210in the failure of building plumbing to discharge properly. For
211purposes this subsection, a system shall not be deemed in
212failure solely because the system does not have the minimum
213separation distance between the drainfield and groundwater
214table.
215     2.  "Repair" means replacement of or modifications or
216additions to a failing system which are necessary to allow the
217system to function in accordance with its design or are
218necessary to eliminate a public health or pollution hazard,
219including the use of any treatment method that is intended to
220improve the functioning of any part of the system or to prolong
221or sustain the length of time the system functions, excluding
222the:
223     a.  Service or replacement with like kind and quality
224mechanical or electrical parts of an approved onsite sewage
225treatment and disposal system.
226     b.  Minor structural corrections to a tank or distribution
227box.
228     c.  Use of an authorized additive in indoor building
229plumbing by the system owner.
230     d.  Removal of the contents of any tank or the installation
231of an approved outlet filter device without disturbing the
232drainfield.
233     e.  Replacement of any broken tank lid.
234     f.  Splicing of a drip emitter line where no emitter is
235eliminated.
236     (6)(5)  ENFORCEMENT; RIGHT OF ENTRY; CITATIONS.--
237     (b)1.  The department may issue citations that may contain
238an order of correction or an order to pay a fine, or both, for
239violations of ss. 381.0065-381.0067, part I of chapter 386, or
240part III of chapter 489 or the rules adopted by the department,
241when a violation of these sections or rules is enforceable by an
242administrative or civil remedy, or when a violation of these
243sections or rules is a misdemeanor of the second degree. A
244citation issued under ss. 381.0065-381.0067, part I of chapter
245386, or part III of chapter 489 constitutes a notice of proposed
246agency action.
247     2.  A citation must be in writing and must describe the
248particular nature of the violation, including specific reference
249to the provisions of law or rule allegedly violated.
250     3.  The fines imposed by a citation issued by the
251department may not exceed $5,000 $500 for each violation. Each
252day the violation exists constitutes a separate violation for
253which a citation may be issued.
254     4.  The department shall inform the recipient, by written
255notice pursuant to ss. 120.569 and 120.57, of the right to an
256administrative hearing to contest the citation within 21 days
257after the date the citation is received. The citation must
258contain a conspicuous statement that if the recipient fails to
259pay the fine within the time allowed, or fails to appear to
260contest the citation after having requested a hearing, the
261recipient has waived the recipient's right to contest the
262citation and must pay an amount up to the maximum fine.
263     5.  The department may reduce or waive the fine imposed by
264the citation. In determining whether to reduce or waive the
265fine, the department must consider the gravity of the violation,
266the person's attempts at correcting the violation, and the
267person's history of previous violations including violations for
268which enforcement actions were taken under ss. 381.0065-
269381.0067, part I of chapter 386, part III of chapter 489, or
270other provisions of law or rule.
271     6.  Any person who willfully refuses to sign and accept a
272citation issued by the department commits a misdemeanor of the
273second degree, punishable as provided in s. 775.082 or s.
274775.083.
275     7.  The department, pursuant to ss. 381.0065-381.0067, part
276I of chapter 386, or part III of chapter 489, shall deposit any
277fines it collects in the county health department trust fund for
278use in providing services specified in those sections.
279     8.  This section provides an alternative means of enforcing
280ss. 381.0065-381.0067, part I of chapter 386, and part III of
281chapter 489. This section does not prohibit the department from
282enforcing ss. 381.0065-381.0067, part I of chapter 386, or part
283III of chapter 489, or its rules, by any other means. However,
284the department must elect to use only a single method of
285enforcement for each violation.
286     Section 3.  Section 381.00656, Florida Statutes, is created
287to read:
288     381.00656  Grant program for repair of onsite sewage
289treatment and disposal systems.--The department shall administer
290a grant program to assist owners of onsite sewage treatment and
291disposal systems that are found to be in violation of s.
292381.0065 or the rules adopted thereunder. Such grants may be
293awarded to an owner for the purpose of repairing and bringing
294into compliance a system serving a single-family residence
295occupied by the owner and where the family occupying the
296residence has an income of less than or equal to 200 percent of
297the federal poverty level at the time of application. The
298department may prioritize applications for an award of grant
299funds based upon the severity of a system's noncompliance, its
300relative environmental impact, the income of the family, or any
301combination thereof. The department shall adopt rules
302establishing the grant application and award process, including
303an application form. The department shall seek to make grants in
304each fiscal year equal to the total amount of grant funds
305available, with any excess funds used for grant awards in
306subsequent fiscal years.
307     Section 4.  Paragraph (m) is added to subsection (2) of
308section 381.0066, Florida Statutes, to read:
309     381.0066  Onsite sewage treatment and disposal systems;
310fees.--
311     (2)  The minimum fees in the following fee schedule apply
312until changed by rule by the department within the following
313limits:
314     (m)  Filing fee for inspection reports pursuant to s.
315381.0065(5): a fee of not less than $75, or more than $150.
316
317The funds collected pursuant to this subsection must be
318deposited in a trust fund administered by the department, to be
319used for the purposes stated in this section and ss. 381.0065
320and 381.00655.
321     Section 5.  Paragraphs (a) and (b) of subsection (1) of
322section 489.557, Florida Statutes, is amended to read:
323     489.557  Fees, establishment.--
324     (1)  The department shall, by rule, establish fees as
325follows:
326     (a)  For septic tank contractor registration:
327     1.  Application and examination fee: not less than $25 or
328more than $75.
329     2.  Initial registration fee: not less than $55 $50 or more
330than $105 $100. From this fee, $5 shall be used to fund the
331septic tank contractor advisory panel established pursuant to s.
332489.561.
333     3.  Renewal of registration fee: not less than $55 $50 or
334more than $105 $100. From this fee, $5 shall be used to fund the
335septic tank contractor advisory panel established pursuant to s.
336489.561.
337     (b)  For master septic tank contractor registration:
338     1.  Application and examination fee: not less than $25 or
339more than $75.
340     2.  Initial registration fee: not less than $55 $50 or more
341than $105 $100. From this fee, $5 shall be used to fund the
342septic tank contractor advisory panel established pursuant to s.
343489.561.
344     3.  Renewal of registration fee: not less than $55 $50 or
345more than $105 $100. From this fee, $5 shall be used to fund the
346septic tank contractor advisory panel established pursuant to s.
347489.561.
348     Section 6.  Section 489.561, Florida Statutes, is created
349to read:
350     489.561  Septic tank contractor advisory panel.--
351     (1)  By July 1, 2010, the Department of Health shall
352establish and staff an advisory panel to assist the department
353in the development and adoption of rules for contractors
354licensed under this part.
355     (2)(a)  The panel shall be comprised of two representatives
356of the septic tank industry recommended by the Florida Onsite
357Wastewater Association; one representative who is a manufacturer
358of onsite sewage treatment and disposal systems; one  
359representative who is a septic tank contractor licensed under
360this part; and one representative who is a master septic tank
361contractor licensed under this part.
362     (b)  The panel shall select a chair, who shall serve for a
363period of no more than 1 consecutive year and who shall direct,
364coordinate, and execute the duties of the panel.
365     (c)  The panel shall meet as often as necessary, but no
366less than semiannually, to conduct duties as provided in this
367section and as requested by the department. The department shall
368keep minutes of all meetings of the panel.
369     (d)  Members of the panel shall receive no compensation but
370are entitled to reimbursement for per diem and travel expenses,
371when requested, in accordance with s. 112.061.
372     (3)  The panel shall hear allegations of ethical misconduct
373of contractors licensed under this part and make recommendations
374for disciplinary action to the department. The panel shall also
375hear appeals for certificate of registration denial, revocation,
376or suspension resulting from ethical misconduct and shall advise
377the department as to the disposition of such appeals.
378     (4)  Nothing in this section shall be construed to impair
379the department's authority pursuant to s. 381.0065.
380     Section 7.  For the purpose of incorporating the amendment
381made by this act to section 381.0061, Florida Statutes, in
382references thereto, paragraph (a) of subsection (3) and
383paragraph (a) of subsection (5) of section 381.0072, Florida
384Statutes, are reenacted to read:
385     381.0072  Food service protection.--It shall be the duty of
386the Department of Health to adopt and enforce sanitation rules
387consistent with law to ensure the protection of the public from
388food-borne illness. These rules shall provide the standards and
389requirements for the storage, preparation, serving, or display
390of food in food service establishments as defined in this
391section and which are not permitted or licensed under chapter
392500 or chapter 509.
393     (3)  LICENSES REQUIRED.--
394     (a)  Licenses; annual renewals.--Each food service
395establishment regulated under this section shall obtain a
396license from the department annually. Food service establishment
397licenses shall expire annually and are not transferable from one
398place or individual to another. However, those facilities
399licensed by the department's Office of Licensure and
400Certification, the Child Care Services Program Office, or the
401Agency for Persons with Disabilities are exempt from this
402subsection. It shall be a misdemeanor of the second degree,
403punishable as provided in s. 381.0061, s. 775.082, or s.
404775.083, for such an establishment to operate without this
405license. The department may refuse a license, or a renewal
406thereof, to any establishment that is not constructed or
407maintained in accordance with law and with the rules of the
408department. Annual application for renewal is not required.
409     (5)  FINES; SUSPENSION OR REVOCATION OF LICENSES;
410PROCEDURE.--
411     (a)  The department may impose fines against the
412establishment or operator regulated under this section for
413violations of sanitary standards, in accordance with s.
414381.0061. All amounts collected shall be deposited to the credit
415of the County Health Department Trust Fund administered by the
416department.
417     Section 8.  For the purpose of incorporating the amendment
418made by this act to section 381.0061, Florida Statutes, in a
419reference thereto, subsection (4) of section 381.0086, Florida
420Statutes, is reenacted to read:
421     381.0086  Rules; variances; penalties.--
422     (4)  A person who violates any provision of ss. 381.008-
423381.00895 or rules adopted under such sections is subject either
424to the penalties provided in ss. 381.0012, 381.0025, and
425381.0061 or to the penalties provided in s. 381.0087.
426     Section 9.  For the purpose of incorporating the amendment
427made by this act to section 381.0061, Florida Statutes, in a
428reference thereto, subsection (7) of section 381.0098, Florida
429Statutes, is reenacted to read:
430     381.0098  Biomedical waste.--
431     (7)  ENFORCEMENT AND PENALTIES.--Any person or public body
432in violation of this section or rules adopted under this section
433is subject to penalties provided in ss. 381.0012, 381.0025, and
434381.0061. However, an administrative fine not to exceed $2,500
435may be imposed for each day such person or public body is in
436violation of this section. The department may deny, suspend, or
437revoke any biomedical waste permit or registration if the
438permittee violates this section, any rule adopted under this
439section, or any lawful order of the department.
440     Section 10.  For the purpose of incorporating the amendment
441made by this act to section 381.0061, Florida Statutes, in a
442reference thereto, paragraph (d) of subsection (2) of section
443386.03, Florida Statutes, is reenacted to read:
444     386.03  Notice to remove nuisances; authority of Department
445of Health and local health authorities.--
446     (2)  If the sanitary nuisance condition is not removed by
447such person or persons within the time prescribed in said
448notice, the department, its agents or deputies or local health
449authorities, may within the county where the nuisance exists,
450remove, cause to remove, or prevent the continuing sanitary
451nuisance condition in the following manner:
452     (d)  Institute administrative proceedings authorized by the
453department as set forth in s. 381.0061.
454     Section 11.  For the purpose of incorporating the amendment
455made by this act to section 381.0061, Florida Statutes, in a
456reference thereto, subsection (2) of section 513.10, Florida
457Statutes, is reenacted to read:
458     513.10  Operating without permit; enforcement of chapter;
459penalties.--
460     (2)  This chapter or rules adopted under this chapter may
461be enforced in the manner provided in s. 381.0012 and as
462provided in this chapter. Violations of this chapter and the
463rules adopted under this chapter are subject to the penalties
464provided in this chapter and in ss. 381.0025 and 381.0061.
465     Section 12.  This act shall take effect July 1, 2009.


CODING: Words stricken are deletions; words underlined are additions.