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LawTalk
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Category: Legal
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Experience:  I am a practicing attorney with more than 30 years of experience in the legal field.
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We bought a 4 bedroom home. We had drain field problems from

Customer Question

We bought a 4 bedroom home. We had drain field problems from year 2. We found that the builder filed a floor plan for a 3 bedroom and installed a septic system for the same which is smaller than that required for a four bedroom. Director of the Florida DOH for onsite septic systems confirmed that the county inspector should have verified that the as built home matched the submitted floor plans. We showed them that they do not match. The Lake County Regional attorney sent us a letter saying that they all agree we have a three bedroom home and that is all they have to say on the matter ???? Ther are four other homes on our block - same builder - same problem.
Submitted: 5 years ago.
Category: Legal
Expert:  LawTalk replied 5 years ago.
Good afternoon,

I'm sorry to hear of your dilemma.

Your issue is really not whether you make use of 4 rooms as bedrooms, or just 3. The real issue is the load on the septic system--the number of people living in the home and the average water usage for those persons.

It is entirely possible that the home was, for example, a 3 bedroom home with a bonus room, and thereby qualified as a 3 bedroom home. Too, the fact that other homes in your neighborhood are all suffering the same problem makes it sound like there may be something else playing into the mix.

If you bought the home new, and this isn't a problem that you have been living with for many years, you may be able to seek compensation from your builder. However, given that there is a dispute, even as between the findings of the local government officials, as to what was required pursuant to "code" at the time the home was built, I'm afraid that you may have a difficult time proving up your claim. Your entire claim rests on whether you can prove you have a 4 bedroom home, as opposed to a 3 bedroom--despite the fact that the floor plan is different from that originally submitted.

I wish you well.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

Customer: replied 5 years ago.
The as built and submitted plans do not match. Ours was advertised (have proof) and sold as a 4 br. A 4br requires a 30% larger drain field and 150 gallon larger septic tank. Also impact fees were based on number of Brs. Per DOH code they were supposed to ask for revised floor plan. If they had the drain field and septic would have been larger and we would probably not have a problem.

 

 

Reponse from XXXXX XXXXX - Lake Cty Health Dept.

On 03/18/09 you wrote "Mr. Miller, When DOH inspected the residence in conjunction with the septic system inspection, the lay-out was as the plans indicated and met the definition of a three bedroom residence. The septic system was given final approval at that time having met all of the criteria of the issued permit.

 

If at the time of the final inspection of a septic system, the floor plans in the file do not match the residence built on site, then DOH does ask for updated floor plans prior to final approval. If that residence requires a larger septic system, then that also is required to be installed and inspected prior to final approval of the septic system."

 

 

Excerpt from "64E-6.004 Application for System Construction Permit."

(5) The applicant shall be the permit holder and shall be held responsible for all information supplied to the department. The signed application, site evaluation, and system design plans when required, serve as the basis by which the department determines the issuance of a construction permit. In the event of a change in any information given in the application which served as basis for issuing a construction permit, the permit holder will immediately file an amended application detailing such changed conditions. If the new conditions are determined to be in compliance with the standards in this chapter, the construction permit shall be amended. If the new conditions are determined to be in non-compliance with the standards of this chapter, the permit shall be revoked subject to the provisions of Chapter 120, F.S. A system construction permit application shall be valid for one year. If a permit has not been issued to the applicant within one year from the date of application, then the department shall review the construction permit application for accuracy at no charge prior to issuance of a permit. The applicant shall supply a statement that the information contained in the application has not changed, or shall amend the application. If a site visit is necessary as part of the review, then a re-evaluation fee shall be charged. If the rules under which the application was accepted have changed, and an onsite sewage treatment and disposal system construction permit has not been issued, a new permit application shall be required.

Expert:  LawTalk replied 5 years ago.
Were you the original purchaser of the home?
Customer: replied 5 years ago.

Yes,

 

All but one of us are original owners. The fllor plans have not been changed. The directors confirmation that the county should have asked for a revised plan and drainfield layout are below.

 

 

 

"That is correct".

 

Gerald R. Briggs, Chief
Bureau of Onsite Sewage Programs
Florida Department of Health


 

From: Public Records [mailtoXXX@XXXXXX.XXX]
Sent: Monday, April 20, 2009 8:49 AM
To: Briggs, Gerald R
Subject: Request for information

Dear Mr. Briggs,

 

I was referred to you by Renee Alsobrook. Can you tell me if the statement made by XXXXX XXXXX of the Lake County Health Department (in red text) is a required practice for final inspections?

 

Thank you,

 

Braxton Miller


From:XXX@XXXXXX.XXX [mailtoXXX@XXXXXX.XXX]
Sent: Wednesday, March 18, 2009 12:36 PM
To:XXX@XXXXXX.XXX
Subject: RE: 10517 Via De Robina Court

 

Mr. Miller,

If at the time of the final inspection of a septic system, the floor plans in the file do not match the residence built on site, then DOH does ask for updated floor plans prior to final approval. If that residence requires a larger septic system, then that also is required to be installed and inspected prior to final approval of the septic system.

 

 

Paul D. Butler Jr.

Asst. Env. Health Director

Lake CHD


Expert:  LawTalk replied 5 years ago.

Good afternoon,

As I mentioned, I believe that you may have a valid claim against the builder. I sense that you are directing your attention more at the local government authorities responsible for inspections than you are at the builder.

Keep in mind that governmental agencies are generally completely immune fro suit for damages related to negligence in the carrying out of their governmental functions.

So, even if you can prove that the county should have asked for a revised floor plan, I'm afraid that you may be barking up the wrong tree.


Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

Customer: replied 5 years ago.

The 2008 Florida Statutes

Title XLV
TORTS
Chapter 768
NEGLIGENCE
View Entire Chapter

768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.--

(1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university's main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

Expert:  LawTalk replied 5 years ago.
Good afternoon,

I am well aware of the Government Tort Claims Act, both federally and as states typically allow tort suits.

However, in my opinion your claim is problematic at best, XXXXX XXXXX as against the health department.

I will opt out and allow another expert to assist you, if they can, as I sense that you have your mind made up. I will suggest that based on the denial by the Lake County Regional Attorney, that short of your just retaining legal counsel and filing suit--hoping for the best--that there is little that you will accomplish by continued research and negotiation with the governmental entities concerned.

I wish you good luck.

Doug

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I am a practicing attorney with more than 30 years of experience in the legal field.