STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

RICKY RAY AND GLENDA )

ROBSON, )

)

Petitioners, )

)

vs. ) CASE NO. 90-3341

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer, in Cross City, Dixie County, Florida.

APPEARANCES

For Petitioners: Robert Moeller, Esq.

P.O. Drawer 1419

Cross City, Florida 32628

For Respondent: Frances S. Childers, Esq.

Assistant District III Legal Counsel Department of HRS

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

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit concerning property they own located in the vicinity of the Suwannee River in Dixie County, Florida. A related issue concerns whether the Petitioners are entitled to seek a variance from the permitting statute and rules at issue in view of Executive Order 90-14 issued by the Governor on January 1, 1990. The Department takes the position that this removes its discretion to consider variance requests for proposed OSDS installations for sites which lie beneath the ten-year flood elevation of the Suwannee River. See Rules 10D-6.043 through 047, Florida Administrative Code, and Section 381.272, Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the application of the Petitioners for an OSDS permit seeking authority to install a conventional septic tank and drain field system to treat and dispose of residential sewage effluent on their property located in the vicinity of the Suwannee River in Dixie County, Florida. The application was filed in February of 1990; and at the behest of the Respondent/Department, the Petitioners obtained the services of a registered land surveyor to perform

an elevation survey of the property. They also obtained a flood elevation report from the Suwannee River Water Management District ("District"), which information was submitted in conjunction with the filing and processing of their application. The survey revealed that the surface grade elevation of the property is 11.8 feet above mean sea level ("MSL") and that the ten-year flood elevation for the property is 14.64 feet above MSL. After submission of this documentation to the Department, the Dixie County office of the Department reviewed the submittals and Department personnel made a site evaluation and inspection of the property. After review of this information, the Department denied the permit application because it did not meet the requirements of Rule 10D-6.047(6), Florida Administrative Code. This was because the Department opined that the bottom surface of the drain field trenches or absorption beds to be installed would lie beneath the ten-year flood elevation and because of the environmental health officer's opinion that the Governor's Executive Order 90-14 prohibited construction of mounded OSDS's within the ten-year flood elevation of the Suwannee River.

The Petitioner, Ricky R. Robson, also submitted an application for a variance because of his knowledge that the adjoining landowner had sought and obtained a variance for property of the same or similar elevation which authorized him to install such a mounded OSDS. The variance procedure was not pursued, however, because the applicant was informed by the Department's personnel that the Department could not entertain any variance requests or grant variances because of the perceived effect of the Governor's Executive Order as prohibiting installation of OSDS's beneath the ten-year flood elevation, including variances from the permitting requirements which would authorize such installations.

The cause then came on for hearing as noticed. At the hearing, the Petitioners presented the testimony of Ricky R. Robson, William Pierce, James A. Fross, and Richard G. Hunter. Petitioners' fifteen (15) exhibits were admitted into evidence. The Petitioners' initial submittal concerning the ten-year flood elevation revealed that elevation, according to the District, to be fifteen feet above MSL. Subsequent to this initial determination, the Petitioners submitted additional data detailing the location of their property with greater clarity to the District; and, therefore, the District amended its determination and report to reflect that the ten-year flood elevation is actually 14.64 feet at the Petitioners' property.

The parties ordered a transcript of the proceeding at the conclusion of the hearing and were accorded the right to file Proposed Recommended Orders, containing proposed findings of fact and conclusions of law. The Petitioners moved for, and by agreement of the Respondent, were granted an extension of time to file that pleading. Proposed Recommended Orders were thus timely submitted by the parties and the proposed findings of fact contained therein are treated in this Recommended Order and specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioners purchased real property approximately two miles downstream on the Suwannee River from the point where U.S. Highway 19 crosses the Suwannee River in Dixie County, Florida. They purchased the property on June 6, 1986. The property is located upon a canal which ultimately connects with the Suwannee River. The purchase price of the property was $15,000.00.

   The applicants paid $3500.00 as a down payment and thereafter have made payments

   on a Purchase Money First Mortgage in the amount of $255.83 per month. They purchased the property as an investment and as a place to construct a vacation home in the future.

   
   

2. On or about February 1, 1990, the applicants filed an application to install an OSDS with the Dixie County Unit of the Florida Department of Health and Rehabilitative Services. An application for a variance from the permitting rules regarding installation and operation of OSDS's was also submitted. The applicant, Ricky R. Robson, applied for the variance apparently because his neighbor, the owner of the adjacent lot, had previously sought and obtained a variance the year before, authorizing him to construct a "mounded OSDS" on his property.

   
   

3. The Petitioners, as required by the Department, obtained the services of a registered land surveyor, Herbert C. Parrish, Jr., to perform an elevation survey of the property and the installation site. That elevation survey was submitted with the application documents and showed the surface grade elevation of the installation site to be 11.8 feet above MSL. The Petitioners were also required by HRS to obtain a determination of the ten-year flood elevation for the property from the District. The initial report obtained from the District indicated that the elevation of the ten-year flood plain at the location of the Petitioners' property was 15 feet above MSL.

   
   

4. On or about February 23, 1990, the Dixie County Environment Health Officer made an on-site inspection of the property. This inspection included soil borings and a general inspection of the property. The soil borings performed did not reveal the presence of any soil type which would preclude the installation of an OSDS. No vegetative species indicative of frequent flooding were noted. Nevertheless, the health officer determined that the property was subject to "frequent flooding" based upon the District's flood elevation report concerning the ten-year flood elevation. Therefore, the Petitioners' application for an OSDS permit was denied on that basis and on the health officer's belief that Executive Order 90-14 prohibited further construction of OSDS's, including mounded systems within the ten-year flood elevation. In his testimony at hearing, however, Mr. Fross acknowledged that his earlier reference to "frequent flooding" was in error and, indeed, the site is not subject to frequent flooding.

   
   

5. The Petitioners elected not to pursue the application for variance after they were informed by the Environmental Health Officer that pursuing such a variance would be futile. This was because no further variances were to be considered or granted by the Department due to the perceived effect of the Governor's Executive Order 90-14 referenced above. That Executive Order adopted, by reference, the "Suwannee River Task Force" recommendation and precluded the installation of OSDS's below the ten-year flood elevation because of risk to health and to ground or surface waters.

   
   

6. Subsequent to the initial denial of the application, the Petitioners supplied more detailed information regarding the location of their property to the District and the District issued an amended flood elevation determination indicating that the actual ten-year flood elevation at the location of their property is 14.64 feet above MSL. It has been established in this proceeding that that is the ten-year flood elevation at the Petitioners' property and installation site. There is, thus, a 2.84 foot difference between the surface elevation of the Petitioners' installation site and the ten-year flood elevation.

7. The installation site is characterized by slight-limited soils, consisting of fine sand extending at least 72 inches below the surface grade of the installation site. Additionally, the wet season water table was found to be at least 72 inches beneath the surface grade of the property. Thus, in terms of soil characteristics and water table elevations, the site is certainly appropriate, under the guidelines contained in the rules cited herein, for installation of a conventional subterranean septic tank and drain field system, but for the deficiency under Rule 10D-6.047, Florida Administrative Code, concerning the bottom surface of the drain field or absorption beds being beneath the ten-year flood elevation.

   
   

8. The Petitioners have proposed an alternative solution to the problem involving the surface elevation of the property. That solution would involve the installation of a mounded system which would raise the bottom surface of the drain field trenches or absorption beds above the ten-year flood elevation. The Petitioners, in essence, propose to accomplish this by compliance with Rule 10D- 6.049, Florida Administrative Code, which contains specifications and requirements concerning installation of a base filled area surrounding a mound and requirements concerning placement of the septic tank and drain field within that mound. Given the requirements of that rule which limits the mound to a 36- inch height, but allows a base pad of fill of appropriate soils to be placed beneath the mound before its construction, it is obvious, given the 2.84 foot differential between the surface grade of the installation site and the ten-year flood elevation, that installation of such a mounded system would amount to a feasible alternative OSDS which will raise the drain field trench bottoms above the ten-year flood elevation. In conjunction with the six feet of appropriate soil above the wet season water table, this will assure that public health and ground or surface waters are not harmed or degraded by the installation and operation of such a system. Rule 10D-6.047 clearly envisions that installation of such fill, including a mound for such a system, can be accomplished where it references the "final lot elevation at the site of the proposed system installation . . .", as does Rule 10D-6.049, Florida Administrative Code, where it provides detailed specifications regarding construction of mounded systems and references them as "alternative systems."

   
   

9. It should be pointed out, however, that although such a system has been established to be a reasonable alternative OSDS within the meaning of the subject rules at issue, Rule 10D-6.047 proceeds to require that the installation of such a mounded system on property which lies within the regulatory flood way requires a certification of an engineer, registered in the State of Florida, to the effect that the installation of the fill and mound will not serve to alter the "base flood". That engineering evidence and certification has not been adduced in the proof in this proceeding, even though the District, as well as the Department, has approved the installation of such a system on the Larry Gilbert lot, immediately adjacent to the Petitioners' lot, without requiring a "works of the District permit" from the District. The approval of such a similar system on the property with similar elevation immediately adjacent to the subject property might indicate that the Department has a policy of interpreting its rules to allow such mounded systems on property within the ten- year flood elevation, provided that such mounds raise the drain fields above the ten-year flood elevation. It has not been proven, however, that the fact that the District did not require a "works of the District permit" should be and has been interpreted in the past to be equivalent to the engineer's certification required by Rule 10D-6.047. Consequently, a grant of an OSDS permit for such an alternative system for these Petitioners should be conditioned on the provision of such engineering certification, calculations and data to the Department.

10. The Petitioners' property is designated as Lot 24 of Highpoint Suwannee River Front Estates, a platted subdivision. The adjacent lot is Lot 23, owned by Larry Gilbert. The ground elevation of the Gilbert lot is approximately identical to the elevation of the Petitioners' lot. On or about July 14, 1988, Mr. Gilbert made an application to the Department for installation of an OSDS upon his property. The District, in that same month, issued a letter finding that the Gilbert lot was not subject to frequent flooding. The District also indicated in that letter that the installation of

    42 inches of suitable soil on the lot would be sufficient for the installation of a mounded in-ground OSDS and that installation of such a system would not violate District rules regarding construction of obstructions in the regulatory flood way.

    
    

11. Based upon that information, Mr. Gilbert was able to obtain a variance from the Department's variance board permitting him to install what is known as a "National Sanitation Foundation class I aerobic treatment system" on the property.

    
    

12. After obtaining that variance, Mr. Gilbert requested an informal hearing before a Department Hearing Officer regarding the variance board's denial of his request to construct a conventional, but mounded, in-ground OSDS. Following that informal hearing, the Hearing Officer recommended that Mr. Gilbert be permitted to construct a traditional in-ground OSDS utilizing only 36 inches of fill. That informal order was adopted by HRS in a Final Order; and the 36-inch mounded system was constructed upon the Gilbert property, adjacent to the subject property and passed the Department's final inspection.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Petitioners have the burden of proof to establish that they are entitled to an OSDS permit. See Florida Department of Transportation v. J. W.

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

    
    

15. The basic requirements for an OSDS permit are set forth in Section

    381.272 Florida Statutes, which provides pertinently 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 mean 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 systems 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."

    
    

16. 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.

    
    

17. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use of an OSDS shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil and water table conditions, and soil water drainage and site topography. Rule 10D-6.046, Florida Administrative Code, describes the requirement for location and installation of an OSDS; 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.

    
    

18. It is undisputed, in relation to the requirements contained in the above-cited rules and statute, that the Petitioners properly applied for the permit in question and that the area of their lot meets applicable standards since it is more than one-half acre in size. It is also undisputed that the proposed installation site of the OSDS in question does not violate any setback requirements nor is any anticipated daily flow of sewage effluent to exceed any amounts prescribed in the above-quoted and cited authority.

    
    

19. As shown by the above Findings of Fact, the OSDS permit in question was denied because the Department's personnel determined that the installation site was located beneath the ten-year flood elevation and because of the Department's perception that the Governor's Executive Order 90-14 precluded the installation of any OSDS's within the ten-year flood elevation. Thus, the Petitioners must demonstrate an ability to comply with all the provisions of Rule 10D-6.047, Florida Administrative Code, specifically, the provisions concerning the requirement that the bottom surface of septic tank drain fields or absorption beds be above the ten-year flood elevation so that they are not subject to inundation.

20. Section 10D-6.047(6) Florida Administrative Code, provides pertinently as follows:

    
    

    "10D-6.047 site evaluation criteria. Standard on-site sewage disposal systems may be utilized where lot sizes are in compliance with Rule 10D-6.046(7) and all of the following criteria are met: . . .

    (6) The final lot elevation at 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 beds 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 Districts' data, and Federal Emergency Management Agency flood insurance maps are resources that can be used to identify 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 in 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."

    
    

21. The first sentence of paragraph 6 quoted above, particularly the language "final lot elevation" when considered with Rule 10D-6.049, Florida Administrative Code, which provides, in some detail, requirements for construction and installation of mounded septic tank systems and provides that they can be considered "reasonable alternative systems" for purposes of permit entitlement, justifies the conclusion that the rule quoted above allows for construction and installation of mounded systems in order to obtain permit entitlement, even within the ten-year flood elevation; provided, of course, that the entire above-quoted rule is complied with and that the septic tank drain fields or absorption beds are raised above that ten-year flood elevation and that the other regulatory requirements designed to insure public health and environmental safety, in terms of ground or surface water degradation, are met. It is also true that if the property involved is located within a regulatory flood way, as the subject property is, then the engineering certification referenced in the above-quoted rule, to the effect that the installation of a mound will not increase the water surface elevation of the base flood, is required. Thus this rule, when considered together with Rule 10D-6.049, clearly provides that mounded systems may be constructed within the ten-year flood elevation, assuming that all other permitting requirements concerning soil characteristics, water table elevations, mound configuration and area, and the like are met.

22. It is noted that the applicants initially submitted both an application for an OSDS permit and an application for a variance. The variance application was apparently submitted because the Petitioners perceived that it was necessary in order to construct an OSDS upon their property, based upon the recent experience of their neighbor, as to Lot 23. In fact, the rules cited last above, themselves, permit the construction of a mounded system so long as the appropriate regulatory permitting requirements mentioned above are met, including that the bottom surface of the drain field trenches or absorption beds are 24 inches or more above water table elevations at the wettest season of the year and that the bottom surface of the drain fields or absorption beds are above the ten-year flood elevation.

    
    

23. As found above, the Petitioners' property is located in the regulatory flood way and thus the Petitioners' are required to demonstrate that the mounded system will not increase the water surface elevation of the base flood. This information has to be provided by an engineer registered in the State of Florida, who can certify that his data and calculations show that the base flood level will not be increased. The applicants have not provided this information in evidence in this proceeding. The Environmental Health Officer did testify that he relied upon the determination of the District with respect to all matters regarding the ten-year flood elevation and the regulatory flood way. The Petitioners demonstrated that Lot 23 of the same ground elevation was not subject to frequent flooding and that the District had determined that a mounded system would not increase the base flood level to such a degree as to require a "works of the District" permit. This does not mean, however, that this deferral by the Department's personnel to the findings of the District in this regard constitutes a consistent, incipient policy of the agency in such situations; and, even if it is so deemed, the fact remains that the agency's own rule, quoted above, provides unequivocally that mounded systems will not be authorized within a regulatory flood way unless the relevant engineering certification, data and calculations showing that the base flood level will not be increased are provided before a permit can be issued. The agency is not authorized under the law to adopt a policy, if it indeed has done so in the past, which differs from its own organic rule regulating the subject matter. See, Best Western Trivoli Inns, Inc. v. Department of Transportation, 435 So.2d 321 (Fla. 1st DCA 1983).

    
    

24. Consequently, although the Petitioners have established the efficacy of installation and use of a mounded system, so constructed in accordance with Rule 10D-6.049 and 10D-6.047 as to raise the drain field trenches above the ten- year flood elevation and to have the correct slight-limited soils in the mound and in the filled platform under and surrounding the mound, before an OSDS permit can be granted for such a system as a "reasonable alternative system", the relevant engineering data, certification, and calculation must be provided. Thus, the grant of the permit, for reasons delineated in more detail below, should be conditioned upon such engineering data being provided. Hearing Officers are authorized to recommend the grant of permits on conditional bases, where such a grant is supported by the record evidence, as is the case here. See, Hopwood v. State Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981).

    
    

25. There is no dispute that Rules 10D-6.047, Florida Administrative Code, and 10D-6.049, Florida Administrative Code, have been validly adopted, pursuant to Section 120.54, Florida Statutes. Rules 10D-6.047 and 10D-6.049 were implemented and enacted by the Department, pursuant to legislative mandate, contained in Section 381.031(i)(g)(3), Florida Statutes, which require the Department to adopt rules and regulations regarding the safe disposal and

    treatment of sewage and other waste, etc. No provision of Chapters 120 or 381, Florida Statutes, would purport to permit the Governor of the State to unilaterally, in effect, repeal a validly-adopted rule of an administrative agency which has been validly adopted pursuant to mandate of the legislature.

    Thus, the Governor's Executive Order 90-14 cannot be said to lawfully suspend those portions of Chapter 10D-6 at issue which would permit the Petitioners to construct a mounded system, so long as the requirements embodied in Rules 10D- 6.046, 10D-6.047, and 10D-6.049 are met.

    
    

26. Turning to those specific requirements, the Petitioners have agreed to install such a mounded system in accordance with the soil, configuration, and other standards embodied in the above-cited rules, particularly in the "alternative system" rule at 10D-6.049, Florida Administrative Code. The mounded system proposed by the Petitioners is a reasonable alternative system because of the findings above concerning the soil and water table elevation characteristics, as well as the size of the subject lot and distance from potable water wells. The size of the lot is clearly adequate for the base pad or platform of fill upon which the mound, itself, would be constructed. There is only a 2.84-foot deficit between the surface grade of the lot and the ten- year flood elevation. Such a filled surface pad or platform, coupled with the mound itself, was shown to easily be capable of raising the bottom of the drain field trenches above the ten-year flood elevation without violating the setback requirements of the rules, the sloping requirements for the mound and other surface, unobstructed area requirements embodied in Chapter 10D-6. The fine sand soil, which is at least 72 inches deep at the installation site, is an adequate slight-limited soil and is appropriate for use with an OSDS. This fact, coupled with the above-found wet season water table elevation, when only

    24 inches differential is required beneath the bottom surface of the drain field trenches and the water table, shows that the proposed installation site is appropriate for the installation and operation of a single-family resident OSDS. The mounded system will clearly be able to operate in this soil and water table medium on this lot in such a way as to safeguard the health of the residents, the public health generally, and the ground or surface waters involved in or near the site.

    
    

27. In summary, it has been demonstrated that such an OSDS, in a raised, filled mound, using fill of the proper, slight-limited soil characteristic, with the mound configured in accordance with Rule 10D-6.049, Florida Administrative Code, will constitute a reasonable alternative solution for purposes of the rule cited last above. It will raise the bottom surface of the drain field trenches above the ten-year flood elevation, as required by Rule 10D-6.047, Florida Administrative Code. Consequently, so long as the Petitioners provide, as a condition on a grant of the OSDS permit, the engineering data and certification referenced above and required by Rule 10D-6.047, Florida Administrative Code, the Petitioners should be issued the permit to construct the mounded system, so long as its configuration comports with these rules.

    
    

28. Although it is the determination of the Hearing Officer that the Petitioners are entitled to an OSDS permit, in accordance with the above- concluded conditions and considerations, the position of the Department that the Executive Order of the Governor effectively prohibits the granting of any variances merits further discussion.

    
    

29. In Executive Order 90-14, the Governor directed the Respondent to implement the Suwannee River Task Force recommendation that OSDS's be prohibited within the ten-year flood elevation of the Suwannee River and that they should otherwise be in compliance with the applicable statutes and rules concerning

    such systems in their installation and operation. The agency has taken a 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.

    
    

30. 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 constitutes authority emanating from the Florida Legislature directing the Respondent to allow a procedure whereby variances from strict application on the statutory rule and 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 exacted under it, cloth 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 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 Department a hardship basis for avoiding the stricture of a permit denial for noncompliance with the statute and rules pertaining to permitting itself.

    
    

31. 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 variances for any property and OSDS installation sites owned by applicants which happen to lie beneath the ten-year flood elevation. The Governor's Executive Order, however, cannot legally obviate the mandate of the Legislature that the Department 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.

    
    

32. 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 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 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 the 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.

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 in this proceeding granting the Petitioner an OSDS permit authorizing construction of a mounded septic tank and drain-field system, in accordance with the requirements of Rules 10D-6.046, 10D- 6.047, 10D-6.049, Florida Administrative Code, and in accordance with the conditions discussed and found hereinabove.

DONE and ENTERED this 7th day of March, 1991, in Tallahassee, 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 7th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact 1-18. Adopted.

Respondent's Proposed Findings of Fact 1-17. Adopted.

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

Robert Moeller, Esq.

P.O. Drawer 1419 Cross City, FL 32628

Frances S. Childers, Esq. Department of HRS

1000 N.E. 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 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

RICKY RAY and GLENDA ROBSON,

Petitioners,

vs. DOAH Case No. 90-3341

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 on-site sewage disposal systems 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 shellfishing in a large portion of Suwannee Sound. ...

Executive Order 90-14 (adopting recommendation 36 of the Task Force Report) prohibits 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 petitioners' application seeking a permit or a variance for an on-site sewage disposal system be DENIED.

DONE and ORDERED this 4th day of April , 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 32628

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 10 day of Apr , 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: 90-003341

Orders for Case No: 90-003341