STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES F. KAZMIERSKI, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3338

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer, in the Dixie County Courthouse, in Cross City, Dixie County, Florida. The appearances were as follows:

APPEARANCES

FOR PETITIONER: Robert Moeller, Esq.

P.O. Drawer 1419 Cross City, FL :32609

FOR RESPONDENT: Frances S. Childers, Esq.

Assistant District III Legal Counsel Department of HRS

1000 N.E. 16th Avenue Gainesville, FL 32609

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an onsite sewage disposal system ("OSDS") permit, whether he is entitled to seek a variance from the permitting requirements in the statutory and regulatory provisions cited below, so as to authorize installation of an OSDS on his property near the Suwannee River, in the Town of Suwannee, in Dixie County, Florida. A related issue concerns whether the Petitioner is entitled to seek a variance in view of Executive Order 90-14 issued by Governor Martinez on January 1, 1990, which the Department maintains removes its discretion to consider variance requests for parties who hake been denied permits pursuant to Rule 10D-6.047(6), Florida Administrative Code. See Section 381.272, Florida Statutes, and Rules 10D-6.043-047, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the application of the Petitioner, James F. Kazmierski, for an OSDS permit for his property located in the Town of Suwannee, Dixie County, Florida. The Petitioner seeks the permit in order to authorize installation of a septic tank and drain-field-type sewage disposal system in order to serve the personal residence he plans to construct on the property.

The application was filed February 20, 1990; and documentation was submitted in conjunction with the application which shows that the surface grade elevation of the property is 4.68 feet above mean sea level ("MSL") and that the ten-year flood elevation for the property is 15 feet above MSL. After submission of the flood elevation information report and the elevation survey from a registered land surveyor, the Dixie County Office of the Department reviewed the application, made a site evaluation and inspection of the property and, after review, issued a letter of denial of the permit application because it did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property and installation site allegedly lies beneath the ten-year flood elevation for the Suwannee River. In particular, the bottom surface of the drain field trenches or absorption beds would be beneath that ten-year flood elevation according to the Department.

After the receipt of the denial letter, the applicant and his wife submitted a letter to the Dixie County Office of the Department requesting a hearing for a variance. In effect, the Petitioner sought to avail himself of the Department's internal variance board procedure, although apparently no formal application for variance was ever filed. In any event, the applicant was informed by the Department that the Department would entertain no variance requests or grant a variance and that his request would be referred for a formal hearing before the Division of Administrative Hearings in conjunction with the denial of the permit application itself. In effect, the Department takes the position that Executive Order 90-14, entered by the Governor on January 17, 1990, effectively prohibits the construction of OSDS systems within the ten-year flood plain of the Suwannee River and the Department's consideration of any variance requests concerning installation sites within that elevation.

In this posture, the cause came on for hearing as noticed. The Petitioner presented the testimony of James F. Kazmierski, the Petitioner, Sable Boling, William Pierce, James Fross and Richard Hunter. Petitioner's 15 exhibits were admitted into evidence. The Respondent presented no additional testimony, relying on that of the witnesses called by the Petitioner and his cross- examination of them. Respondent's exhibit one was admitted into evidence.

Additionally, the parties stipulated that the testimony of Mr. William Pierce, engineer for the Suwannee River Water Management District ("District"), given in Case NO. 90-2660, Silcox v. Department of Health and Rehabilitative Services, would be considered in the instant case. After the conduct of the final hearing, it was discovered by the parties that the District witness was in error in stating that the property lay in the regulatory flood way of the Suwannee River and also in the report of the ten-year flood elevation being 14 feet above MSL. It was, thus, stipulated, posthearing, that an amended flood elevation report issued by the District reflecting a 15 foot above MSL ten-year flood elevation, as well as reflecting the fact that the property did not lie within the regulatory flood way, should be considered in lieu of the testimony of the District's witness in those particulars, but that all other testimony of the District's witnesses be the same as already admitted into the evidentiary record. The Petitioner did not stipulate as to the accuracy of that amended report as to the purported ten-year flood elevation represented therein.

At the conclusion of the proceeding, a transcript thereof was ordered and prepared. The parties were accorded the right to file Proposed Recommended Orders containing proposed findings of fact and conclusions of law. The Petitioner moved for, and by agreement of the Respondent, was granted an extension of time for submission of this pleading; and Proposed Recommended

Orders were timely submitted. The proposed findings of fact submitted in those pleadings are treated in this Recommended Order and are specifically addressed in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner, James F. Kazmierski, and his wife, purchased real property in the Town of Suwannee, Florida, in Dixie County, on December 29, 1988. The property is described as Suwannee River Park, Unit 2, Lot 19-1. The subject property is waterfront property located upon a saltwater canal. The property was purchased for a total price of $55,550.00. After the purchase of the property, the applicant invested an additional $30,000.00 in the construction of a sea wall and boathouse, making his total investment approximately $80,000.00. At the time the property was purchased by the applicant, other residential construction was proceeding in the Town of Suwannee and other septic tank and drain-field systems were being installed. Numerous other such systems were already installed and operating in the Town of Suwannee, Florida.

   
   

2. In February of 1989, in preparation for construction upon the property, the Petitioner contacted the Dixie County Office of the Department regarding the procedures he would be required to follow in order to install an OSDS. An initial inspection was performed by a representative of the Department, and the Petitioner was informed that an OSDS could be installed on his property. Other than this initial inquiry and initial response from the Department, concerning his ability to secure a septic tank permit and installation of the OSDS on his property, the Petitioner did not submit a formal application for a permit at that time because he planned to construct a sea wall and boathouse on the waterfront-side of the property. Construction operations for this project would have necessitated the use of heavy equipment which could have destroyed or damaged an OSDS system if it were already installed. Due to delays in environmental permitting for that project, the sea wall and boathouse were not completed until February of 1990.

   
   

3. After completion of those improvements along the canal front of his property, the applicant again contacted the Dixie County Office of the Department and was informed that he would be required to file an application in order to secure an OSDS permit. The applicant, accordingly, submitted the subject application to the Dixie County Office of the Department on February 20, 1990. After initial submission of that application, he was required to submit additional information in the form of a flood elevation information report from the District describing the ten-year flood elevation at the installation site, as well as securing an elevation survey by a registered land surveyor. This was done; and pursuant to stipulation entered into by the parties, posthearing, the District's ten-year flood elevation information report, as amended, reflects a ten-year flood elevation of 15 feet above MSL. The elevation survey of the property established that the actual surface elevation of the property is 4.68 feet.

   
   

4. After submission of the flood elevation report and elevation survey, the Dixie County Office of the Department issued a letter of denial of the permit application because the permit application did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code, in that the installation site, in the view of the Department, lay beneath the ten-year flood elevation and the bottom surface of the drain fields and absorption beds proposed would lie beneath that elevation.

5. After receipt of that denial letter, the Petitioner, joined by his wife, submitted a letter to the Dixie County Off ice of the Department requesting "a hearing for a variance to obtain a septic tank permit . .". The Petitioner believed that he could avail himself of the Department's informal variance board procedure. The Department, however, advised the Petitioner that he should pursue a formal administrative hearing before the Division of Administrative Hearings. The Department advised the Petitioner that an application for a variance from the requirements of Rule 10D- 6.047(6), Florida Administrative Code, would not likely be granted because the property, in the view of the Department, was located within the ten-year flood elevation of the Suwannee River and that, pursuant to the Governor's Executive Order 90- 14, that the Department could not entertain or grant any such variance applications or permits for installations which would lie beneath that elevation.

   
   

6. The Petitioner purchased the property with the intent to use it for residential purposes and proposes installing the requested OSDS for a private residence. That residence would contain approximately three bedrooms and a heated or cooled area of approximately 2,000 square feet. The property presently has available water service through a central water system for the Town of Suwannee and does not require the installation of a potable water well. Consequently, the lot size requirements contained in the Department's rules related to the installation of an OSDS and to setback distances for such systems from potable water wells, are not applicable or at issue herein.

   
   

7. The Petitioner's property has an actual elevation at the grade surface of the installation site of 4.68 feet above MSL. The soils characterizing the proposed installation site are organic type soils down to approximately 18 inches beneath the grade surface and then the soil becomes a sandy loam-type of soil for perhaps two inches and then organic-type soil from 20 inches down to 48 inches. There is evidence of "mottling", which indicates damp soil, at approximately 6 to 10 inches beneath the surface of the property. Mottling coloration in subsurface soil such as this indicates a wet season water table level where the mottling occurs because it is due to moisture. The water table at the time the evaluation of the site was performed, however, was 36 inches below the existing grade level. The Petitioner suggests that mounding an OSDS system for this property might be feasible because it would place the OSDS septic tank and drainfield system in a filled mound of at least 36 inches height above existing grade level. If this could be done, it might be feasible to elevate the bottom surface of the drain field so that the required minimum of 24 inches differential between the bottom surface 0f[ the drain field and the level of the wet season water table could be maintained. This would be environmentally preferable to installing a conventional subterranean septic tank and drain- field system beneath the natural surface of the lot in question in terms of better protecting the ground and surface waters in the vicinity of the site from degradation through improperly treated sewage effluent, if appropriate slight or moderately limited soils were used in the construction of the mound which would contain the system. Thus, as the Department's witness acknowledged, a mounded system is a possible feasible alternative to accommodate the treatment of the sewage to be expected without causing an adverse impact on public health, the health of the users of the property, nor degradation of the ground or surface waters involved. Although a mounded system is a possible alternative, the Petitioner did not adduce sufficient evidence of technical information

   which-could show that such a system would, indeed, work properly in terms of having a sufficient, unobstructed land surface surrounding the mound in order to comport with the regulatory requirements in Chapter 10D-6, Florida Administrative Code. Although the technical details necessary to show that such a system would correctly operate on the property in question was not adduced

   into evidence, there is no dispute, however, that the gross lot size is adequate to accommodate such a mounded system. Thus, if appropriate slight or moderately limited soils were used in the construction of the mound and if it would otherwise conform to all the technical requirements of Chapter 10D-6, Florida Administrative Code, which was not shown, and if the ten-year flood elevation obstacle to permitting did not exist, it would seem that a mounded system could be designed and constructed so as to meet the regulatory requirements of Chapter 372, Florida Statutes, and Chapter 10D-6. The Petitioner did not suggest, through his testimony or evidence, any other reasonable alternative to a conventional subterranean OSDS.

   
   

8. In any event, the proposed installation site was not shown to be above the ten-year flood elevation of the Suwannee River. Because of this, neither a mounded system nor any other type of alternative system has been shown to be capable of being installed at the site and comporting with the rules contained in Chapter 10D-6, Florida Administrative Code, particularly, Rule 10D-6.047(6). That is, with either the conventional or mounded system in mind, it has not been demonstrated that the bottom of the drainfield trenches or absorption beds at issue, as envisioned in this rule, would be above the ten-year flood elevation.

   
   

9. A report prepared by the District and submitted by the applicant with his application, as amended by posthearing stipulation, establishes a reported ten-year flood elevation of 15 feet above MSL. The Petitioner adduced the testimony of Williams Pierce, an engineer with the District, in their case in chief. His testimony in the Silcox case (DOAH Case No. 90-2660) was stipulated into the record in the instant Mr. Pierce testified that the elevation in the District report (now 15 feet) is the elevation shown in the data contained in the computer model generated and maintained by the District. The information by which this computer model was designed, and which resulted in the 15-foot elevation comes from the U.S. Army Corp. of Engineers' data, along with data from the Federal Emergency Management Agency ("FEMA"), the Hydraulic Engineering Center in Davis, California, the U.S. Geological Survey and the National Oceanic and Atmospheric Administration. The storm surge component of that ten-year flood elevation came from data generated by a privately-contracted study prepared for the federal agencies and supplied to the District.

   
   

10. Through the testimony of Mr. Pierce, the Petitioner established substantial doubt as to the accuracy of the 15-foot ten-year flood elevation. Mr. Pierce established that the ten-year flood elevation figure for the Suwannee River decreases as it is measured many miles upstream from the Town of Suwannee, when measurement proceeds in a downstream direction. Thus, for instance, the

    ten-year flood elevation at the Town of White Springs, at river mile 177, upstream from the coast is approximately 81 feet. The ten-year flood elevation at the location known as "Wilcox", some 33 miles above the confluence of the Suwannee River with the Gulf of Mexico, is approximately 16 feet. This decreasing ten-year flood elevation figure, as progressively measured downstream toward the coast, is a natural incident to the fact that the elevation of the land surrounding the Suwannee River declines in elevation above sea level as the land elevation is measured going in a downstream or coastward direction. That is, as the surrounding upland elevation declines, the waters of the Suwannee River, in a flood event, can spread outward from its channel over a wider area, due to being less confined by higher upland elevations, which results in the flood elevations being lower. Thus one would logically expect that if the ten- year flood elevation at Wilcox, 33 miles upstream, is 16 feet above MSL, the flood elevation at the Town of Suwannee, where the property in question lies, would be substantially lower. However, in the District's flood elevation data, the element of `1storm surge" is additively calculated in the ten-year flood

    elevation figure. This is designed to take into account surges caused by storms pushing water inland on the coast where the Suwannee River makes its confluence with the Gulf of Mexico. According to the District's data and Mr. Pierce's testimony, this would effectively raise tide actual ten- year river flood stage elevation level. The problem with the 15-foot, ten-year flood elevation figure is that Mr. Pierce was unable, in his testimony, to show how and why the storm surge closely correlates with the river flood stage to produce a 15- foot, ten- year flood elevation at the location of the Petitioner's property near the mouth of the river. Moreover, he was unable to establish in his testimony how tee District's flood elevation calculations and figures take into account any probability of the storm surge occurring simultaneously with the ten-year flood event for the Suwannee River or what that probability might be. Thus, the Petitioner's evidence casts substantial doubt that the 15-foot, ten-year flood elevation figure is accurate and comports with logic. Therefore, it can be found herein that the 15-foot, ten-year flood elevation figure has not been proven to be accurate. The problem remains, however, that the Petitioner must establish that the installation site in question does not occur beneath the ten- year flood elevation of the Suwannee River. The Petitioner adduced no evidence to establish what the ten-year flood elevation might actually be nor that the installation site lies above it. Consequently, sufficient proof has not been established to comport with the requirement that the bottom surface of the drain field trenches or absorption beds lies above the ten-year flood elevation, so as to show that the installation site is not subject to inundation.

    
    

11. The Petitioner did not formally apply for a variance from the permitting statute and rules, upon having the permit application initially denied by the Department. This is because the Department advised the Petitioner, in effect, that it would be futile to apply for a variance and to avail himself of the Department's informal variance procedure because of the effect of the Governor's Executive Order 90-14, entered on January 17, 1990. That Executive Order incorporated Recommendation No. 36 of the "Suwannee River Task Force" report, which recommended that all OSDS installations lying beneath the ten-year flood elevation of the Suwannee River be prohibited and that the grant of any permits for OSDS installations be down in strict compliance with pertinent permitting statutes and rules. According to the Department, the Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation of the Suwannee River be prohibited. The Department, thus, takes the position that the entry of the Executive Order took away its discretion to entertain any variance applications for properties lying beneath the ten-year flood elevation and. advised the Petitioner to avail himself of a formal hearing procedure before the Division of Administrative Hearings rather than seek a variance through the Department's own internal variance procedure.

    
    

12. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner will definitely experience a hardship if a permit or variance is not granted, because of the money expended to purchase and develop the lot, which will be largely unusable without the ability to establish a residence thereon by installing an OSDS system, it has not been proven that no reasonable alternatives exist to the installation of a conventional OSDS subterranean-type system on the property. The Petitioner proposed installation of a mounded system which has some promise as a reasonable alternative system (although sufficient evidence was not adduced to establish that such a system would adequately treat and dispose of the effluent in question without causing a public health hazard or degradation of ground and surface waters, as discussed above). Nor was sufficient evidence adduced of a lack of adverse environmental effects, in this regard, as to establish any other type of reasonable alternative approach to treatment and disposal of the expected sewage effluent.

    Thus, one element of the variance criteria cited below has not been met. A mounded system, with adequate proof, might be established as a reasonable alternative. It has neither been established that the installation of an OSDS system of the conventional subterranean type, nor any other type, would not have an adverse impact on public health or would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

14. The Petitioner seeks to obtain an OSDS permit for property located in Dixie County, Florida. The Petitioner seeks to change the status quo and, therefore, has the burden to establish the proof necessary to demonstrate entitlement to the OSDS permit. See, Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner did not file an application for a variance because of representations made by the Respondent's personnel that such an application would be futile in light of the Respondent's interpretation of the applicability of the Governor's Executive Order, referenced herein. It is noted, parenthetically, that insufficient proof was offered supportive of the grant of a variance from the permitting statutes and rules in terms of the three variance criteria enunciated in Section 381.272(8), Florida Statutes, and the related rule. That is, no proof was offered to show that no reasonable alternative to a conventional septic-tank drain field type disposal system exists. In fact, Petitioner showed that a mounded system, characterized by a sufficient depth of appropriate soil beneath the drain field might be feasible, although sufficient proof of its design and operational characteristics was not adduced. Neither was it established that the effluent from the system proposed to be installed would not adversely affect the health of the Petitioner, the general public nor that it would not adversely affect the quality of the surface or ground waters involved at the site. Thus, had a variance been applied for, it could not be granted based upon the quality of proof offered by the Petitioner.

    
    

15. The basic requirements for an OSDS permit are contained in Section 381.272, Florida Statutes, which provides as follows:

    
    

    (1)...where a publicly owned or investor owned sewage system is not available, the Department of Health and Rehabilitative Services may issue permits

    for construction or installation of On-Site sewage disposal systems under Conditions as described in this section.

    1. Subdivisions and lots in which each lot has a minimum of at least one-half acre and either a minimum dimension of 100 feet or a main of at least 100 feet of the side bordering the street and the distance formed by a line parallel to the side bordering the street drawn between the two most distant points of the remainder of the lot may be developed with a private potable well and

       onsite sewage disposal system, provided the projected domestic sewage flow does not exceed an average of 1500 gallons per acre per day, and provided satisfactory drinking water can be obtained and all distance and set back, soil conditions, water table elevation, and other requirements of this section and rules promulgated hereunder can be met.

    2. Subdivisions and lots with 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 2500 gallons per acre per day, and provided all distance and set back, soil conditions, water table elevation and other related requirements which are generally applicable to the use of onsite sewage disposal systems are met."

       
       

16. Rule 10D-6.043(1), Florida Administrative Code, provides that no onsite sewage disposal system shall be installed without a permit obtained from the Department.

    
    

17. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use of an onsite sewage disposal system shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil and water table conditions, and soil drainage and site topography.

    
    

18. Rule 10D-6.046, Florida Administrative Code describes the requirement for location and installation of an onsite sewage disposal system and Rule 10D- 6.046(7)(a), Florida Administrative Code, provides that each lot upon which an OSDS is installed shall have a minimum area of one-half acre. There is no dispute that the lots are of a sufficient size to comport with this rule.

19. Rule 6D-6.047(6), Florida Administrative Code states that: "(6) The final lot elevation of the site of

    the proposed system installation and the

    additional and unobstructed land referred to in Rule 10D-6.046(4) is not subject to frequent flooding. In addition, the bottom surface of the drain field trench or absorption bed shall not be subject to flooding based on ten year flood elevations.

    U.S. Department of Agriculture Soil Conservation Service soil maps, state of Florida Water Management District's data, and federal emergency management agency flood insurance maps are resources that can be used to identify the flood prone areas. Mound systems, sand filters or other systems which require the placement of fill material or construction of above grade structures, will not be authorized within a regulatory flood way unless certified by an engineer

    registered within the state of Florida that the placement of such fill or structures will not increase the water surface elevation of the base flood. The certification of such systems shall be substantiated by dates and method of calculation provided by the engineer and shall be subject to review and approval by the County Public Health Unit."

    
    

20. When pursuing a permit application, the applicant must demonstrate entitlement to the OSDS permit based upon demonstrated compliance with the criteria contained in the statutes and rules cited herein. This application was denied specifically because the site of the proposed drain field system is beneath the ten-year flood elevation parameter for the Suwannee River. The Petitioner failed to prove that the property is located above the ten-year flood elevation so as to entitle Petitioner to an OSDS permit, in accordance with the rule cited last above, and in light of the findings concerning the issue of the ten-year flood elevation made above.

    
    

21. Parenthetically, it is noted that the Petitioner did not establish that the appropriate types of soil extended 42 inches or more below the bottom surface of the proposed drain field trench or absorption bed, in accordance with Rule 10D-6.047(1), Florida Administrative Code, nor that the water table elevation at the wettest season of the year is at least 24 inches below the bottom surface of the drainfield trench or absorption bed. The failure to show compliance with these additional standards for OSDS permitting would constitute an independent basis for denial of the permit, had that basis for denial been raised by the pleadings. In that connection, however, the Petitioner's proof shows that a mounded system might redress these deficiencies, if adequate evidence were shown regarding its design and operational characteristics, which was not done. However, since the installation site was not established to be in compliance with the ten-year flood elevation standard in Rule 10D-6.047(6), Florida Administrative Code, the sole basis for the initial permit denial, that is a sufficient basis for denial.

    
    

22. As delineated above, the applicant's proof does not support entitlement to a variance from the above-cited permitting statutes and rules. The applicant, for instance, did not demonstrate that reasonable alternatives do not exist for the treatment of the sewage in question and did not demonstrate that the discharge from the individual sewage disposal system proposed would not adversely affect the health of the applicant, `nembers of the public, or significantly degrade the ground or surface waters involved. In fairness to the Petitioner, it should be pointed out that the Petitioner did not come to hearing seeking to prove entitlement to a variance, apparently because the Respondent had instructed the Petitioner as to the futility of seeking to prosecute a variance, proceeding through its informal variance board process. This was because of the Respondent's belief regarding the applicability of the Governor's Executive Order 90-14, as precluding any consideration of variance requests.

    
    

23. In that connection, in Executive Order 90-14, the Governor directed the Respondent to implement the Suwannee River Task Force recommendation that OSDS's should be prohibited within the ten-year flood elevation and should otherwise be in compliance with the applicable rules and regulations concerning such systems and their installation. The Respondent has taken the position, therefore, that the Governor's Executive Order, indicates that OSDS's so situated are sources of pollution in the Suwannee River, and that regulations prohibiting the installation of them within the ten-year flood elevation are,

    ipso facto, designed to protect public health and prevent significant degradation of ground or surface waters. In effect, the Respondent conclusively presumes that if such systems are installed within the ten-year flood elevation, they cause degradation or adverse effect on public health and ground or surface waters. The Respondent, thus, has conclusively presumed that no such variance applications can be granted.

    
    

24. Section 381.272(8), Florida Statutes, authorizes, along with the related rules enacted pursuant to it, that the Respondent may grant variances from the statutory and rule-embodied permitting requirements for OSDS's. That statutory mandate, under which the related rules were enacted, constitutes authority emanating from the Florida Legislature directing the Respondent to allow a procedure whereby variances from strict application of the statutory and rule permitting requirements can be granted, in proper cases, so as to authorize them in cases of unavoidable hardship, balanced with the small likelihood of environmental damage, as enunciated in the statutory provision and rules cited above. Section 381.272(8), Florida Statutes, and the rules enacted under it, clothe the Respondent with discretion in this area and mandate that such a variance procedure be inaugurated and followed for the benefit of the members of the public who seek OSDS permits, have them denied, and, therefore, need an opportunity to demonstrate a hardship entitlement to a variance from the permitting rules, if the above-cited three requirements for proof of entitlement to a variance can be met. This is not an unbridled discretion, and the consideration of variance applications must conform to the three requirements set forth in the statutory section cited last above and repeated in Rule 10D- 6.045(3), Florida Administrative Code. This statutory and regulatory scheme sets up a discreet variance procedure which affords the affected public the opportunity to show the Respondent a hardship basis for avoiding the stricture of a permit denial for noncompliance with the statute and rules pertaining to permitting, itself.

    
    

25. If the Respondent persisted in its present interpretation of the effect of the Governor's Executive Order, it would, in effect, create a conclusive presumption against the grant of any variances for any property and OSDS installation sites owned by an applicant which happen to lie beneath the ten-year flood elevation for the Suwannee River. The Governor's Executive Order, however, cannot legally obviate the mandate of the Legislature that the Respondent must exercise discretionary authority in this area within the bounds of the variance criteria enacted by the Legislature in Section 381.272(8), Florida Statutes. If the Executive Order is so interpreted by Final Order in this and other similar proceedings, it would constitute a violation of the separation of powers doctrine embodied in the Florida Constitution and, thus, would be an impermissible usurpation of the authority of the legislative branch of government by the executive.

    
    

26. Rather, at most, the Governor's Executive Order, incorporating Recommendations of the Suwannee River Task Force Report, can only serve as guidance to the Respondent in considering variance applications under the legislatively-mandated variance criteria referenced above, as, for instance, a policy basis for determining the materiality of deviations from the technical permitting rule standards for such installations, concerning the overall issue in variance proceedings regarding whether the discharge will adversely affect health or significantly degrade ground or surface waters. The Governor's Executive Order cannot, however, appropriately be used as raising a conclusive presumption having universal application to all such proceedings, dictating that all variances be denied simply because the property or sites to which they relate lie below the ten-year flood elevation of the Suwannee River. All

    opportunity to show lack of adverse health effects, lack of degradation of ground or surface waters or that no reasonable alternatives exist for the treatment of the sewage effluent in question, as that relates to demonstration of sufficient hardship justifying the grant of a variance, cannot, thus, be automatically and arbitrarily foreclosed. Since the variance statute in question and the rules enacted pursuant to it constitute a legislative mandate that that variance procedure be inaugurated and followed by the Respondent, in situations where permits are initially denied, that scheme must be employed and followed until repealed or amended.

    
    

27. Although the subject OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood elevation consideration discussed herein, that does not mean that the Petitioner should not be accorded the opportunity to establish entitlement to a variance. Likewise, if the Petitioner, by later application, can demonstrate changed factual circumstances as, for instance, that alternative treatment and disposal systems or methods are available and feasible (which was not done in this case), then a alter permit application itself, encompassing demonstration of such changed circumstances, could be entertained.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That a Final Order be entered denying the application of the Petitioner for an OSDS permit.

DONE AND ENTERED this 3rd day of January, 1991, in Tallahassee, Leon County, Florida.

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3338

Petitioner's Proposed Findings of Fact: 1-15. Accepted.

16. Rejected, as irrelevant, since this is not a rule challenge proceeding

pursuant to Section 120.56 Florida Statutes. 17-29. Accepted.

Respondent's Proposed Findings of Fact:

1-4. Accepted.

1. Rejected, as not in accordance with the preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Accepted.

7-13. Accepted.

14. Rejected, as subordinate to the Hearing Officer's findings of fact and as not entirely in accordance with the preponderant evidence.

COPIES FURNISHED:

Robert Moeller, Esq.

P.O. Drawer 1419 Cross City, FL 32628

Frances Childers, Esq.

HRS District 3 Legal Office 1000 N.E. 16th Avenue Gainesville, FL 32609

Sam Power, Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda K. Harris, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

JAMES F. KAZMIERSKI,

Petitioner,

vs. CASE NO.: 90-3338

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

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FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY RESPONDENT

It was not clearly established in this proceeding whether respondent's lot was within the 10 year floodplain of the Suwannee River. Thus, the decision reached in this Final Order is without prejudice to respondent's right to file a new application or seek a variance.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:

In Executive Order 90-14 the Governor concluded that the greatest threat to the Suwannee River is potential development along the river and that only those land uses compatible with maintaining the natural resource values of the Suwannee River basin should be allowed.

The problems with use of septic tanks in the Suwannee floodplain were addressed in the report of the task force adopted in Executive Order 90-14. The extent of the problem can be seen from the following excerpts from page 14 and

19 of the report:

.... there are an estimated 20,000 - 25,000 small tract platted lots in the Suwannee basin, most of which are currently undeveloped. ...

Septic tanks along the Suwannee River have been implicated in contributing to the high levels of fecal coliform bacteria that have resulted in the closing and restricting of shell fishing in a large portion of Suwannee Sound. ...

Executive Order 90-14 (adopting recommendation 36 of the Task Force Report) prohibits septic tanks (on-site sewage disposal systems) within the 10 year floodplain of the Suwannee River. The Hearing Officer expressed concern about the constitutionality of such a prohibition and suggested that Executive Order 90-14 be considered as advisory only. The Courts have held that administrative agencies lack the authority to adjudicate constitutional

issues. Key Haven vs. Board of Trustees, 427 So2d 153 (Fla. 1982), State Department of Transportation vs. Hendry, 500 So2d 218, 222 (Fla. 1st DCA 1986), Carrollwood State Bank vs. Lewis, 362 So2d 110, 113 - 114 (Fla. 1st DCA 1978). Thus, I conclude that the department should continue to enforce the ban on on-site sewage disposal systems within the 10 year floodplain of the Suwannee River.

Based upon the foregoing, it is

ADJUDGED, that petitioner's application seeking a permit for an on-site sewage disposal system be DENIED.

DONE and ORDERED this 20th day of February 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and Rehabilitative Services

by Deputy Secretary for Health

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Copies furnished to:

Robert Moeller, Esquire Post Office Drawer 1419 Cross City, FL 32609

Frances S. Childers, Esquire District 3 Legal Off ice 1000 N.E. 16th Avenue Gainesville, Florida 32609

P. Michael Ruff Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550 Eanix Poole (HSEH)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named

people by U.S. Mail this 27

day of Feb

1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-003338

Orders for Case No: 90-003338