STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES & CAROLYN MAURICE, ) RITA M. O'BRIEN, )

)

Petitioners, )

)

vs. ) CASE NO. 88-3911

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Milton, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on November 3, 1988. The parties were represented as follows:

For Petitioners: James & Carolyn Maurice, pro se

Rita M. O'Brien, pro se 850 Stephens Road

Pace, Florida 32571

For Respondent: Teresa Goodson, Esquire

District 1 Legal Office Department of Health and

Rehabilitative Services Post Office Box 8420 Pensacola, Florida 32505-8420

The issue addressed in this proceeding is whether Petitioner should be granted a septic tank permit.

At the hearing, Petitioners testified in their own behalf and called two witnesses and introduced nine exhibits. Respondent called one witness and introduced one exhibit.

Neither party timely submitted a proposed recommended order.

FINDINGS OF FACT

1. Prior to November, 1987, Petitioners purchased adjoining Lots 56 and 57 located in West Vic Holiday Sands subdivision in Santa Rosa County. 1/ The two lots constitute substantially less than a fourth of an acre of land.

   Petitioners intended to place two two bedroom mobile homes on the lots for use as a weekend retreat for their families.

   
   

2. When Petitioners purchased the two lots, the lots had an existing 900 - 1050 gallon septic tank on the property. The tank had been previously approved by the Department of Pollution Control in 1973 for Recreational vehicle/campsite

   use. The tank had never been permitted for use as a homesite, such as a two bedroom mobile home would require.

   
   

3. A Recreational Vehicle (RV) is generally considered by HRS to be a motor vehicle with a maximum size of 8'x 35'. Anything substantially over that size, as Petitioners' two mobile homes were, would not be considered for RV use and would be required to obtain a homesite type permit. Petitioners were required by their proposed use of the property to obtain a homesite permit.

   
   

4. However, Petitioners did not discover the homesite permit requirement until after they had purchased the two lots and after they had purchased two mobile homes at considerable monetary cost to themselves. The Petitioners did not think about investigating whether a septic tank permit would be required because the subdivision area had permanent residences already in place.

   However, the evidence demonstrated the majority of these residences are located on four lots. There are a few residences located on fewer than four lots and on lots the size of Petitioners. 2/

   
   

5. The residences with nonconforming septic tanks were permitted by HRS under a mistaken interpretation of the law by the local Health Department office. However, about a year prior to Petitioners' permit and at the request of the local office, the local office was audited and its interpretation was brought into compliance with state law. Petitioners were, therefore, no longer entitled to rely on the local office's previous misinterpretation of the law and in previously issuing permits authorized under that misinterpretation of the law.

   
   

6. Petitioners applied for an existing septic tank permit on November 23, 1987. Because the existing tank did not have enough capacity or drainage area for the Petitioners' desired use and the size of the property was under one- quarter acre, Respondent informed Petitioners they would have to seek a variance from the usual septic tank permit requirements. 3/

   
   

7. Petitioners applied for a variance. Petitioners felt a hardship variance should be granted due to the amount of money they had spent on the property and the fact Respondent had granted other nonconforming permits under its mistaken interpretation of the septic tank law. Neither of the Petitioners appeared at the variance review committee meeting in Ocala, Florida, which considered their variance request. However, the local health official recommended approval of the variance since other tanks had been mistakenly approved previously. The committee reviewed Petitioners' application and other relevant information about the property. The committee determined that no hardship existed and denied the permit. Petitioners received the committee's letter of denial on February 20, 1988.

   
   

8. The evidence showed that Petitioners had spent close to $14,000.00 in purchasing the property and preparing it for occupancy. However, monetary expenditures alone have never been considered sufficient to establish a hardship in permitting cases. Petitioners presented no evidence which would cause such expenditures to amount to a hardship. Use of their property is still available, although that use is not exactly what Petitioners had in mind. Moreover, Petitioners may still recoup the money spent on the mobile homes by renting or selling them. Under these facts, no hardship was shown by Petitioners. In essence, Petitioners failed to show any monetary losses as opposed to expenditures of a significant nature.

9. Likewise, Petitioners failed to establish justifiable reliance on the Respondent's previous mistakes, i.e., estoppel. Respondent's mistakes were not known by Petitioners at the time the majority of Petitioners' expenditures were incurred. The evidence regarding the general appearance of the subdivision was insufficient to establish a basis for such reliance. Moreover, Petitioners had the opportunity and the initial burden to investigate any potential governmental requirements prior to their purchase of the property. Again, no hardship was established by Petitioners' utilizing the theory of estoppel.

   
   

10. Finally, Petitioners failed to present any reliable evidence that the discharge from their septic tank would not adversely affect the health of the public or would not significantly degrade the ground or surface waters of the State. The fact that other nonconforming tanks are in place with relatively few observable problems does not support the further inference that one more nonconforming tank won't hurt in an already overloaded area.

    
    

11. Under these facts, Petitioners are not entitled to a variance from the Department's septic tank requirements; and therefore, are not entitled to a septic tank permit.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of the parties to this action. Section 120.57(1), Florida Statutes.

    
    

13. Petitioners have the burden of proving by a preponderance of the evidence their entitlement to a hardship variance from the septic tank requirements and thereby, be entitled to a permit.

    
    

14. Septic tank permitting is governed by Section 381.272, Florida Statutes, and Rule 10D-6, Florida Administrative Code. Section 381.272, Florida Statutes, reads in pertinent part:

    
    

    381.272 Onsite sewage disposal systems; installations; conditions.

    1. The Legislature declares that it is the policy of this state to require that every onsite sewage disposal system, except approved onsite graywater systems, developed under the provision of this act connect to a publicly owned or investor-owned sewerage system within

       365 days after notification that such a system is available. Where a publicly owned or investor-owned system is not available, the Department of Health and Rehabilitative Services may issue permits for the construction or installation of onsite sewage disposal systems under conditions as described in this section.

       * * *

    2. Subdivisions and lots with a public water system may utilize onsite sewage disposal systems, provided there are no more than four lots per acre, provided

       the projected daily domestic sewage flow does not exceed an average of 2,500 gallons per acre per day, and provided that all distance and setback, soil condition, water table elevation, and other related requirements which are generally applicable to the use of onsite sewage disposal systems are met.

       * * *

       (8)(a) The Department of Health and Rehabilitative Services may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the Department of Health and Rehabilitative Services is satisfied that:

       1. The hardship was not caused intentionally by the action of the applicant;

       2. No reasonable alternative exists for the treatment of the sewage; and

       3. The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters.

    
    

    As noted earlier, monetary expenditures or economic disadvantage alone are insufficient to establish entitlement to a hardship. There are too many ways that such expenditures can be rectified. Thus, no hardship has occurred.

    Petitioners presented no other evidence which would change this general rule of law. Metro Dade v. Reineng, 399 So.2d 379 (Fla. 3rd DCA 1981); Burger King Corp. v. Metropolitan Dade Co., 349 So.2d 210 (Fla. 3rd DCA 1977); Dade Co. v. Frank'n Bun Operating Co., 169 So.2d 875 (Fla. 3rd DCA 1964).

    
    

15. Likewise, Petitioners presented no evidence which would bring them within the statutory requirements outlined above. In particular, Petitioners presented no evidence which demonstrated the lack of an adverse affect on public health or the lack of a significant degradation of ground and surface waters of the State. Petitioners are, therefore, not entitled to a variance under the statutory scheme.

    
    

16. The key question then is whether Respondent is estopped from denying Petitioners a permit because of Respondent's local offices' previous misinterpretation of the law.

    
    

17. Estoppel may be applied against the state only in exceptional circumstances when the following elements are shown: 1) a representation as to a material fact is made that is contrary to a later-asserted position; 2) justified reliance on the representation; and 3) a change in position detrimental to Petitioners caused by the representation and the reliance thereon. See, e.g., Tri-State Systems, Inc. v. Department of Transportation,

    500 So.2d 212 (Fla. 1st DCA 1986); Nelson Richard Advertising v. Department of Transportation, 513 So.2d 181 (Fla. 1st DCA 1987).

18. Petitioners cannot satisfy the requirement of justifiable reliance on Respondent's previous misinterpretation of its law. The local misinterpretation was not a general statewide policy of Respondent, but was a local aberration only. The general facts surrounding the mistakenly granted permits were not known at the time Petitioners spent money on the property. Therefore, Petitioner could not have relied on those agency misinterpretations. Finally, the general appearance of the subdivision cannot supply the necessary representation. The subdivisions appearance was simply not clear enough to amount to a representation sufficient to bind an agency.

    
    

19. Moreover, estoppel may not be predicated upon an earlier error by an administrative agency or even earlier actions of an administrative agency. City of Miami Beach v. State ex. rel. Patrician Hotel Co., 200 So. 213 (Fla. 1941). City of Miami v. Walker, 169 So.2d 842 (Fla. 3rd DCA 1965). Lawrence Nali Construction Company, Inc. v. Department of Revenue, 366 So.2d 27, 29 (Fla. 1st DCA 1988); Nelson, supra.; Arthur Newman, III v. Department of Health and Rehabilitative Services (DOAH Case No. 87-0496, May 12, 1987). To follow such a rationale would result in an agency never being able to correct its mistakes or change its course of action. Moreover, the burden is on the Purchaser of the property to investigate potential governmental requirements concerning that property. Petitioners failed to conduct such an investigation and consequently created the situation they find themselves in today. Estoppel cannot be established when the basis for the estoppel is a party's own action or omission. Petitioner has not established any grounds on which the equitable theory of estoppel can be applied against HRS.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Respondent request for a variance from the septic tank permit requirements be DENIED and the request for a septic tank permit be DENIED.

DONE and ORDERED this 11th day of January, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1989.

ENDNOTES

1/ The tax records for Santa Rosa County reflect that the O'Brien's purchased Lots 58 and 59. However, the evidence presented at the hearing contemplated only 2 lots being utilized.

2/ Petitioners were not aware of the facts regarding these illegal septic tank permits at the time of their purchase.

3/ The one-quarter acre requirement is contained in Subsection 381.272(3), Florida Statutes.

COPIES FURNISHED:

James & Carolyn Maurice, pro se Rita M. O'Brien, pro se

850 Stephens Road

Pace, Florida 32571

Teresa Goodson, Esquire District 1 Legal Office Department of Health and Rehabilitative Services Post Office Box 8420

Pensacola, Florida 32505-8420

Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-003911

Orders for Case No: 88-003911