STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT D. WOOLVERTON, )

)

Petitioner, )

)

vs. ) Case No. 79-1107

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, ) STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above matter, afte due notice, at Jacksonville, Florida on August 14, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Robert D. Woolverton

3551 St. Johns Avenue Jacksonville, Florida 32205

For Respondent: Robert M. Eisenberg, Esquire

District IV Counsel Post Office Box 2417F

Jacksonville, Florida 32231 ISSUE PRESENTED

Whether Petitioner's application for a septic tank permit should be approved.

Petitioner appeared at the hearing without legal counsel and was advised of his rights in administrative proceedings conducted under Chapter 120, Florida Statutes. Petitioner acknowledged that he understood such rights and elected to represent himself at the hearing.

FINDINGS OF FACT

1. Petitioner is the owner of several acres of land which are a part of a platted subdivision in Orange Park, Florida. At an undisclosed date in 1979, Petitioner orally applied to the Clay County Health Department for septic tank permits for Lots 3, 4, 5N, and 5S. The only documentation submitted with his application was a site plan for Lot 5S. By letters of March 26 and 30, 1979, the Clay County Health Department advised the Petitioner that his application was denied because the lots were not in compliance with specified provisions of Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code. By letter of May 3, 1979, Petitioner requested an administrative hearing to contest the denial of his application. At the hearing, officials of the Clay

   County Health Department predicated the denial on the fact that the lots in question were not sufficiently large to permit the required setbacks imposed by law and regulation. (Testimony of Bray, Hickey, Exhibits 1-3)

   
   

2. A stream runs in an easterly direction across the property in question to the St. Johns River which lies approximately 300 years to the east of the property. A curved extension of the stream located on Lot 4 has been filled at some time in the past. A pond is located at the center of Lots 5N and 5S. The size of the lots vary from over one-third to less than one-half acre. The City of Orange Park has a 20 foot wide easement on both sides of the stream bed for maintenance purposes. The easement precludes the construction of permanent structures but does not proscribe other uses of the land area. There is not a public water supply or sewage disposal system available at the present time, although an artesian well located on adjacent Lot 2 provides water for homes which have previously been constructed on that lot and adjacent Lot 1. It is adequate to supply water needs of the lots in question. However, local health officials informed Petitioner that the artesian well cannot be used as a central water supply for the additional lots. Petitioner proposes to install individual septic tanks and drainage fields on each of the lots. Service easements are also located on Lots 4,5, and 5S. (Testimony of Petitioner, Exhibits 1,4)

   
   

3. By exclusion of the easement area on all four lots, together with the pond area of 4,000 square feet on Lot 5N and 3,000 square feet on Lot 5S, the remaining land area of Lots 3 and 4 is more than one-third but less than one- half acre each in size. Lot 5S is slightly less than one-quarter acre in size. Lot 5D is slightly less than one-quarter after exclusion of the pond and easement area. (Testimony of Bray, Exhibit 4)

   
   

4. There is sufficient area in Lots 3 and 4 to provide for set back requirements for individual sewage disposal facilities, i.e., not within five feet of property line or within fifty feet of the high water line of lakes, streams, or other waters, as provided in Rules 10D-6.24(3) and (4), F.A.C., respectively. There is sufficient area in Lots 5N and 5S to meet the above setback requirements when consideration is given to the area necessary for septic drain fields. (Testimony of Bray, Exhibit 4)

   
   

   CONCLUSIONS OF LAW

   
   

5. Section 381.031(1)(g), Florida Statutes, makes it a duty of Respondent to promulgate rules concerning, inter alia, the disposal of sewage or other wastes. Pursuant to this duty, Respondent has promulgated Chapter 10D-6.30, F.A.C., provides that no septic tank or absorption field shall be installed until a construction permit has been obtained from a local office.

   
   

6. Section 381.272(2), F.S., provides that subdivisions of fifty or fewer lots, each lot having a minimum area of at least one-half acre, may be developed with private well and individual sewage disposal, provided that other standards, including setback requirements, contained in Chapter 10D-6 are met. In view of the fact that Petitioner has failed to show that a public water system is currently available for the subdivision lots, the application for individual septic tank permits for the lots should be denied because none of them is at least one-half acre in area as required by the above-cited statute. Petitioner contends that the easement area should not be excluded in calculating the total area of the lots. However, the Respondent properly deducted such area plus the area of the pond on Lots 5N and 5S in arriving at the net usable land area.

   Even if the easement area had been included in calculating the size of the lots, they would still not contain the minimum half-acre area.

7. Although it is therefore concluded that Petitioner's permit application should be denied, such denial is without prejudice for him to re-apply in the future if he can show that a public water system will be utilized. If such is the case, Petitioner will then be obliged to establish by appropriate application with documentation that the setback and other requirements contained in Rule 10D-6.23 can be met.

RECOMMENDATION

That Petitioner's application for septic tank permits be denied.

DONE and ENTERED this 6th day of September, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert D. Woolverton 3551 St. Johns Avenue

Jacksonville, Florida 32205

Robert M. Eisenberg, Esquire District IV Counsel

Post Office Box 2417F Jacksonville, Florida 32231

Docket for Case No: 79-001107

Orders for Case No: 79-001107