STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD E. KERSEY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3339

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 of the Division of Administrative Hearings, on August 20, 1990, in Cross City, Dixie County, Florida.

APPEARANCES

FOR PETITIONER: Donald D. Kersey

Route 2, Box 87

Chiefland, FL 32626

FOR RESPONDENT: Frances S. Childers, Esq.

Assistant District III Legal Counsel Department of HRS

1000 Northeast 16th Avenue Gainesville, FL 32669

STATEMENT OF THE ISSUES

The issue for consideration in this proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit authorizing the installation of an OSDS on property which he owns near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.

PRELIMINARY STATEMENT

The Petitioner owns certain real property in Dixie County, Florida, in proximity to the Suwannee River. On January 19, 1990, the Petitioner made application for an OSDS permit in order to install a septic tank and drain field on the property so as to construct a single-family residence. The Respondent reviewed that application and, in the course of its review, including its site evaluation inspection, the Respondent determined that the permit application should be denied on the basis that the elevation of the property at the location of the OSDS installation site was beneath the ten-year flood elevation. The permit application was denied by the Respondent's letter of April 20, 1990. The Respondent discouraged the applicant, the Petitioner herein, from applying for a variance because it took the position that its variance procedure, and

discretion to grant variances, had been overridden by the Governor's Executive Order 90-14, treated hereinbelow. Thus, this Petitioners like most other petitioners in similarly-situated circumstances and cases, did not actually apply for a variance from the statute and rules regarding the permitting standards for OSDS's. The Petitioner timely requested a hearing, and the cause was duly transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer.

The cause came on for hearing as noticed. At the hearing, the Petitioner presented his own testimony and three exhibits, all of which were admitted into evidence The Respondent presented the testimony of James Fross and two exhibits, which were admitted into evidence.

The parties had the proceedings transcribed and were given the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent filed a Proposed Recommended Order, which is treated in this Recommended Order and which findings of fact are specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as part of Section 30, Township 10 South, Range 14 East. The property is approximately 8.5 acres in size. The Petitioner purchased the property some ten-years ago, and the lot in question has never been platted. The petitioner purchased the property for purposes of constructing a residence for himself and his family. At the time that the Petitioner purchased the property, and since, there have been occupied homes on either side of the property served by septic tank and drain-field sewage disposal systems.

   
   

2. There came a time when the Petitioner elected to construct a home on his property and applied to the Respondent for an OSDS permit on January 19, 1990. On April 20, 1990, after having its personnel make on-site inspections of the property, the Respondent determined that the propert, according to Suwannee River Water Management District calculations, lay beneath the ten-year flood elevation. The Respondent, therefore, denied the permit application.

   
   

3. Pursuant to information obtained from a registered land surveyor, the benchmark elevation of the surface of the Petitioner's property is 14.56 feet above mean sea level ("MSL") The actual surface elevation is 6 inches lower than that or approximately 14 feet. The ten-year flood elevation level for the Petitioner's property, at the Suwannee River mile involved, is 17 feet above MSL. Thus, the surface of the Petitioner's property is some three feet beneath the ten-year flood elevation and were a drain-field system installed on the property, the bottom of the drain-field trench or absorption bed would be a greater distance beneath the ten-year flood elevation.

   
   

4. A "mounded" septic tank and drain-field system might be feasible for the subject property because of the property's adequate size, although such a mounding might have to be approximately five feet or greater in height over the present grade level of the property. The Petitioner, however, did not adduce any testimony or evidence concerning the feasibility of such a mounded disposal system, including details of how it would be constructed and operated and whether there is adequate room on his property to build such a mounded system, including the required undisturbed land area around such a system. The

   Petitioner did not adduce testimony or evidence in support of the feasibility of any other alternative sewage treatment and disposal system for the subject property.

   
   

5. In fact, the property is located within the regulatory floodway of the Suwannee River. Because of this, the rule cited hereinbelow would require that a registered engineer certify and adequately explain the manner and method by which such a mounded system could be built on this property within the regulatory floodway, without altering the level of the "base flood", as, for instance, by excavating an equal volume of fill from another location within the regulatory floodway. However, such engineering testimony and evidence was not offered by the Petitioner; therefore, it has not been established that such a mounded system is a feasible alternative nor has it been established that any other type of treatment and disposal system is a feasible alternative because of the dearth of such evidence.

   
   

6. The Petitioner did not apply for a variance. In any event, however, although the Petitioner clearly has been placed at a hardship because of not being able to construct the retirement residence he has desired for years on the subject property, because of the inability, thus fail at least, to obtain an OSDS permit, the Petitioner has not established- with regard to the below- referenced variance criteria that no reasonable alternative exists to the installation of the subject proposed system beneath the present surface of the lot which would be beneath the ten-year flood elevation. The Petitioner has not offered evidence to establish that the installation of the proposed system will not adversely affect public health and will not degrade the surface and ground waters involved in the immediate area. Thus, the standards for the grant of a variance have not been established by the Petitioner's proof, although it is understood that the Petitioner did not leek a variance, at least as yet.

   
   

7. In that connection, the Respondent asserts that the Petitioner was not accorded the opportunity to avail himself of the Department's variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90- 14, which it opines precludes it from granting any variances or permits for OSDS's within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwannee River Task Force" recommendation to preclude such systems beneath the ten-year flood elevation, was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications.

   
   

8. The Petitioner's proof and, indeed, Respondent's Exhibit NO. 2 establishes that this property is relatively high in elevation, is well-drained, and not subject to frequent flooding, although it does lie beneath the ten-year flood elevation. The soil profile indicates that fine sand exists from the surface down to 72 inches. This type of soil promotes very good percolation of water and, thus, would result in adequate operation of a septic tank and drain field if all other appropriate standards and conditions necessary for such adequate operation were met. In fact, the wet season water table is some 36 inches beneath the surface; and, in general, this property has been shown to be well-suited to the installation of a septic tank and drain-field system, but for the ten-year flood elevation circumstance delineated above.

   CONCLUSIONS OF LAW

   
   

9. 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).

   
   

10. 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.

    
    

11. No proof supportive of the existence of available alternative sewage disposal systems, which might be effective in treating the sewage effluent contemplated for the property in question, was offered. Therefore, compliance with the permitting statutes and rules, themselves, through demonstration of effective alternative sewage disposal and treatment systems was not shown. Likewise, no 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 that no reasonable alternative to a conventional septic-tank- drain-field-type disposal system was offered by the Petitioner, nor was it established that the effluent from the system proposed to be installed would not adversely affect the health of the Petitioner or 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.

    
    

12. 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 on- site 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 on-site 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 on-site sewage disposal systems are met."

    
    

13. The specific requirement for on-site sewage disposal systems for lots platted before 1972, set forth in Section 381.272, Florida Statutes, does not pertain to the property in question because this property has never been subdivided and platted.

    
    

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

    
    

15. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use of an on-site 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 typography.

    
    

16. Rule 10D-6.046, Florida Administrative Code describes the requirement for location and installation of an on-site sewage disposal system and Rule 10D- 6.046(7)(a), Florida Administrative Code, provides that each lot upon which an OSDS his installed shall have a minimum area of one-half acre. This property meets all size and "setback" requirements.

17. 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 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 floodway 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 data and method of calculation provided by the engineer and shall be subject to review and approval by the County Public Health Unit."

    
    

18. It should be noted that this particular property is within the regulatory floodway. Therefore, the engineering certification and data to show that the base flood level would not be altered would be required preparatory to authorization and permitting of a mounded system, consisting of fill material or construction above the grade of the property at the installation site. No such engineering proof has been adduced in this proceeding, however.

    
    

19. 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 within 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. That was the sole basis for the Respondent's denial of the permit application, as shown by the denial letter and testimony of record. In fact, the evidence affirmatively establishes that the aforesaid property and installation site lies below the ten-year flood elevation. Parenthetically, it should be noted that it was established that the appropriate types of soil extend 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, and that the water table elevation at the wettest season of the year is at least 24 inches below the bottom surface of the proposed drain- field trench or absorption bed. However, the installation site not being in compliance with the ten-year flood elevation standard in paragraph (6) of Rule 10D-6.047, Florida Administrative Code, was the sole basis for denial of the permit, expressed in the denial letter initiating this proceeding, and is a sufficient basis for denial of the permit

    
    

20. As alluded to 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 no reasonable alternative exists 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, members of the public, or significantly degrade the ground or surface waters involved, nor was it demonstrated that the lot in question was platted prior to 1972, as that relates to special considerations which can be given under Section 381.272(8), Florida Statutes, concerning variances. 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.

21. In that connection, on January 17, 1990, Governor Martinez issued Executive Order NO. 90-14 regarding the Suwannee River basin. In section 1 of that Order, the Governor directed the Respondent to implement the Suwannee River Task, Force recommendation that OSDS's should be prohibited within the ten- year flood plain and should otherwise be in compliance with 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 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, nor can permits be granted based upon alternative systems and approaches to treatment and disposal of sewage effluent on-site if the installation site in question is at or beneath the ten- year flood elevation.

    
    

22. 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 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 tie 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 standards, if the above-cited three requirements for 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.

    
    

23. This statutory and regulatory scheme sets up a discreet variance procedure which affords the affords 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. 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 happened 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, and in the above-cited rule. 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.

24. Rather, at most, the Governor's Executive Order 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 standards for such installations in the permitting rules 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 by the Respondent, that scheme must be employed and followed until repealed or amended.

    
    

25. Although the OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood 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 later permit application itself, encompassing demonstration of such changed circumstances, could be entertained.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit, without prejudice to the Petitioner applying for and seeking a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above, and without prejudice to applying and pursuing an OSDS permit application at a later time, should the Petitioner become able to demonstrate that alternative methods of treatment and disposal of the sewage effluent in question can feasibly be performed, within the bounds of the standards enunciated in the above-cited statutes and rules concerning on-site sewage disposal permitting.

DONE AND ENTERED this of December, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-3339

The Petitioner filed no proposed findings of fact. Respondent's Proposed Findings of Fact

1-4. Accepted.

1. Rejected, as incomplete and, therefore, not shown to be material.

2. Accepted.

3. Rejected, as not necessary to resolution of material issues and as immaterial.

4. Accepted.

COPIES FURNISHED:

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

Donald D. Kersey Route 2, Box 187

Chiefland, FL 32626

Frances S. Childers, Esq.

Assistant District III Legal Counsel Department of HRS

1000 Northeast 16th Avenue Gainesville, FL 32609

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 lease 10 days in which to submit written exceptions. Some agencies allow a larger period within 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

DONALD E. KERSEY,

Petitioner, CASE NO. 90-3339

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

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.

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 3rd 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:

Donald E. Kersey, pro se Route 2 Box 187

Chiefland, FL 32626

Frances S. Childers, Esquire District 3 Legal Office

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 8th 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: 90-003339

Orders for Case No: 90-003339