STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VERNON MERRITT, )

)

Petitioner, )

)

vs. ) CASE NO. 90-003340

)

)

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: Vernon Merritt, pro se

P.O. Box 325

Inglis, Florida 32649

FOR RESPONDENT: Frances S. Childers, Esquire

Assistant District III Legal Counsel

Department of HRS 1000 N.E. 16th Avenue

Gainesville, Florida 32609 STATEMENT OF THE ISSUES

The issue for adjudication in this proceeding concerns whether the Petitioner is entitled to a permit authorizing the installation of an on-site sewage disposal system ("OSDS") for property lying near the Suwannee River in Dixie County, Florida, in accordance with Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code, and, alternatively, whether the Petitioner is entitled to a variance from those permitting

statutory and regulatory provisions due to hardship, in accordance with the authority cited and discussed hereinbelow.

PRELIMINARY STATEMENT

The Petitioner is the owner of a lot of approximately two acres in size, being Lot 22 at "Hatch Bend" on the Suwannee River. The lot lies in a subdivision known as "Hatch Bend Upon Suwannee". On September 11, 1989, the Petitioner made application with the Dixie County Public Health Unit of the Respondent for an OSDS construction permit. A site evaluation was accomplished by a representative of the Respondent, who indicated that the site was probably

below the ten-year flood elevation and that an accurate elevation from a registered surveyor must be provided. That survey was obtained and it resulted in the Respondent ultimately denying the application for a permit because of the property allegedly lying beneath the ten- year flood elevation for purposes of Rule 10D-6.47(6), Florida Administrative Code. The Petitioner was advised by the Respondent, however, that he had the option to apply for a variance from that section of the rule which precluded installation of OSDS's beneath the ten- year flood elevation. Accordingly, the Petitioner applied for a variance based upon hardship by his application of January 28, 1990. The variance application was apparently not immediately acted upon and the application fee of $100.00 was returned to the Petitioner by the Respondent. The denial of the permit application, itself, was accomplished on April 5, 1990 by letter to the Petitioner; and the cause, together with the issue concerning the variance, was duly transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer.

This cause came on for hearing as noticed. At the hearing, the Petitioner presented his own testimony and Exhibit Nos. 1-7, which were admitted into evidence. The Respondent presented the testimony of Mr. Fross, who had performed the evaluation of the installation site and property in question on behalf of the Respondent in the application review process.

At the conclusion of the proceeding, the Respondent elected to transcribe the proceeding; and the parties were accorded the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent did not file a Proposed Recommended Order, although the Petitioner did. The proposed findings of fact are treated in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is the owner of Lot 22 at Hatch Bend Upon Suwannee, a subdivision platted and recorded in 1979. Lot 22 lies at river mile 59 of the Suwannee River, as determined by the Suwannee River Water Management District. The Petitioner purchased the property for a site to construct a residence for his retirement. He desires an OSDS to serve a small dwelling which he proposes to construct on the site of approximately 1,000 square feet. The lot is two acres in size.

   
   

2. The subject lot is high, level and well drained. In depth, it extends approximately 600 feet from the shoreline of the Suwannee River, upon which it has approximately 150 feet of river frontage. The lot is not subject to frequent flooding, however, as established by a registered land surveyor, the grade elevation of the lot is approximately 19.7 feet above mean sea level ("MSL"), with a benchmark elevation of 20.20 feet at the highest point. The ten-year flood elevation for river mile 59 was established, through information

   derived from the records of the Suwannee River Water Management District, and in evidence, to be 24 feet above MSL. Thus, the surface of the property involved and the septic tank system installation site lies beneath the ten-year flood elevation.

   
   

3. The property, in other particulars, appears to comply with the statute and rules governing requirements for the grant of OSDS permits. That is, the water table level was shown to be more than 72 inches below the surface of the property, which is more than adequate in terms of separation of the proposed drainfield trenches from the ground water table. The soil lying beneath the property is "fine sand", which is a limited soil of an appropriate type for the

   successful functioning of an OSDS. Based upon mottling found in the soil, the water table during wet seasons is estimated to be at 72 inches below the surface, again, a more than adequate separation between the water table during wet seasons and the bottom of the proposed drainfield trenches. Thus, the subject site is amenable to the installation of an OSDS, but for the fact of its elevation beneath the required ten-year flood elevation.

   
   

4. In terms of establishing entitlement to a variance from the subject rule concerning the prohibition of installation of drainfield trenches which will be subject to flooding based upon the ten-year flood elevation, the Petitioner offered no real concrete evidence. The Petitioner merely testified that it was a hardship for him not to be able to construct his proposed retirement home on the property because of the inability to obtain an OSDS permit; however, he did not establish that there were no reasonable alternatives to the normal OSDS proposed and applied for, as for instance, a mounded system so that the drain fields could be installed above the ten-year flood elevation or some other alternative sewage disposal and treatment system. Thus, the Petitioner did not establish that no reasonable alternative exists but to install the normal OSDS, nor did the Petitioner establish that installation of such a system beneath the natural grade would pose no threat to the public's health or the health of the Petitioner. The Petitioner did not establish that such a system would not pose an adverse impact on surface and ground waters in and in the vicinity of the proposed installation site. Thus, no entitlement to a variance from the permitting requirements in the statute and rules cited below was established.

   
   

5. The Respondent takes the position that the variance and the permit application should be denied because the proposed installation site lies below the ten-year flood elevation, and, as the Respondent interprets the Governor's Executive Order No. 90-14, issued on January 17, 1990, which adopted Suwannee River Task Force Report Recommendation NO. 36 by reference, the variance request and the permit application should be denied because that Executive Order and the Report Recommendation it incorporates, in essence, calls for the prohibition of any installation of such systems below the ten-year flood elevation based upon a presumption that such would adversely affect public health and the ground and surface waters. The Respondent takes the position that it cannot discretionarily grant variances in such a situation because of the Executive Order.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. 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 the entitlement to the OSDS permit. See, Florida Department of Transportation v.

   J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

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

   
   

   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."

      
      

9. 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 no evidence has been offered as to the date the lots was platted so that it could be determined that the lot was platted and recorded before 1972.

   
   

10. 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.

    
    

11. 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.

12. 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.

13. 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."

    
    

14. 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 drainfield system is within the ten-year flood elevation parameter for the Suwannee River. It is below that elevation. The Petitioner failed to prove that the property is located above the ten-year flood elevation. That was the sole basis for the Respondent's denial of the permit application, as shown by the denial letter and testimony of record. 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 more than 24 inches below the bottom surface of the proposed drainfield trench or absorption bed. In fact, Respondent's Exhibit One, in evidence, establishes that the bottom of the proposed drainfield trench would lie approximately 54 inches above the wet season water table level. The soil type meets the standard of Chapter 10D-6, Florida Administrative Code. The compliance with these additional standards for OSDS permitting would otherwise justify a grant of the permit. 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, (the sole basis for denial of the permit) is a sufficient basis at law for denial.

15. 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 subterranean 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. It was not 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.

    
    

16. On January 17, 1990, Governor Martinez issued Executive Order NO. 90-

    14 regarding the Suwannee River basin. In that Order, the Governor directed the Respondent to implement the Suwannee River Task Force recommendation, as described in the report. Recommendation NO. 36 of that report recommended that OSDS's 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 report, as incorporated in the Governor's Executive Order, indicates that OSDS's are sources of pollution in the Suwannee River, by definition, 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 affects on the 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.

    
    

17. Section 381.272(8), Florida Statutes, authorizes, along with the related rules enacted pursuant to it, that the Respondent 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 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. 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 essentially repeated 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.

    
    

18. 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 regarding the overall issue in variance proceedings concerning whether the discharge will adversely affect health or significantly degrade ground or surface waters. The Governor's Executive Order cannot, however, appropriately be considered 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 or 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.

    
    

19. Although the subject OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood elevation consideration discussed herein, and entitlement to a variance has not been established because of the above findings and conclusions; 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 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 the application of Vernon Merritt for an OSDS permit and for a variance from the above-discussed permitting requirements, be denied.

DONE AND ENTERED this 18th day of December, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 18th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3340

The Petitioner submitted no proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted.

1. Accepted.

2. Accepted.

4-5. Accepted, but not relevant and material.

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

Vernon Merritt

P.O. Box 325 Inglis, FL 32649

Frances S. Childers, Esq.

Assistant District 111 Legal Counsel Department of HRS

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

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATION SERVICES

VERNON MERRITT,

Petitioner, CASE NO. 90-3340

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 exerpts 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 shellfishing 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 and a variance 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

for 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:

Vernon Merritt, pro se Post Office Box 325 Inglis, FL 32649

Frances S. Childers, Esquire District 3 Legal Office

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

P. Michael Ruff Hearing Office

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahasse, 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 February, 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: 90-003340

Orders for Case No: 90-003340