STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DAVID and PAULA CAYWOOD, )

)

Petitioners, )

)

vs. ) CASE No. 90-6290

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 9, 1991, in Tampa, Florida.

APPEARANCES

For Petitioners: David and Paula Caywood, pro se

9320 Horizon Drive

Springhill, Florida 34608

For Respondent: John L. Pearce, Esquire

HRS District II Legal Office

2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949

STATEMENT OF THE ISSUE

Whether or not Petitioners' application for an on-site sewage disposal system (OSDS) permit should be granted.

PRELIMINARY STATEMENT

By letter dated August 22, 1990, Respondent, Department of Health and Rehabilitative Services, advised the Petitioners that their application for an OSDS permit was denied since it called for an OSDS which was prohibited within the ten year flood plain of the Suwannee River Basin. Petitioners were advised of their right to challenge the denial by requesting a formal hearing pursuant to Section 120.57(1), Florida Statutes within 30 days of the date of the denial letter. Petitioners timely requested a formal hearing and on September 28, 1990, the matter was transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing. On November 20, 1990, the matter was noticed for hearing for January 9, 1991, and was heard as scheduled.

At the formal hearing, Respondent presented the testimony of Ronald Mandziara, an environmental health director, and the Petitioners testified on their behalf. Alvin Futch, a developer who sold lots in the subject area during times relevant, also testified. Respondent introduced Exhibits A and B, which were received in evidence at the hearing.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Petitioners, Paula and David Caywood, are the owners of Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida. The subject lot is situated within the ten year flood plain of the Suwannee River Basin.

   
   

2. On August 13, 1990, Petitioners filed an application with Respondent to install an OSDS to service a two-bedroom home which they desired to place on the subject lot.

   
   

3. As an attachment to their OSDS application, Petitioners introduced a copy of a survey of their lot which was prepared by Walton F. Poppell, a Florida registered land surveyor who holds registration number 2940.

   
   

4. The ground elevation for the ten year flood plain for the subject area where Petitioners propose to install their OSDS is 68.0 ft.

   
   

5. A review of the land survey presented by Petitioners indicate that the proposed OSDS would be at a ground elevation of 63.8 ft. and when completed would be placed at a ground level of 65.64 ft. or 2.36 ft. below the elevation of the ten year flood plain. Although the Petitioners lot is not subject to frequent flooding, since the surface grade is beneath the ten year flood elevation, the bottom of the drain field trenches absorption bed to be installed would also be beneath the ten year flood elevation.

   
   

6. Petitioners have not applied for a variance to install their OSDS within the ten year flood plain of the Suwannee River Basin.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

   
   

9. The authority of the Respondent is derived from Chapter 381, Florida Statutes, and Rule Chapter 10D-6, Florida Administrative Code.

   
   

10. Petitioners seek to obtain an OSDS permit for property situated in Madison County, Florida. Since they seek to change the status quo, they have 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). Petitioners application for installation of the subject OSDS was properly denied because their proposal, as presented, does not meet the requirements of Chapter 10D-6.047(6), Florida Administrative Code

    and Sections 381.031(1)(g)3., and 381.261, Florida Statutes and the Governor's Executive Order 90-14, which prohibits the installation of on-site sewage disposal systems within the ten year flood plain of the Suwannee River Basin.

    
    

11. Petitioners have not applied for a variance as provided for in Rule 10D-6.045, Florida Administrative Code. Nor did Petitioners establish that there are reasonable alternatives to the proposed OSDS. Therefore, Petitioners failed to establish that they could safely and effectively treat the effluent without causing degradation of ground or surface waters or health hazards to the Suwannee River Basin.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Respondent enter a Final Order denying Petitioners application to install an OSDS to service a two-bedroom home on Lot 54, Timber Pines Subdivision, Unit 1, in Madison County, Florida.

DONE and ENTERED this 28th day of February, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 28th day of February, 1991.

COPIES FURNISHED:

David and Paula Caywood 9320 Horizon Drive

Springhill, Florida 34608

John L. Pearce, Esquire

HRS District II Legal Office

2639 N. Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949

R. S. Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. 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

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DAVID and PAULA CAYWOOD,

Petitioner,

vs. CASE NO.: 90-6290

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.

Based upon the foregoing, it is

ADJUDGED, that petitioner'5 application seeking a permit for an on-site sewage disposal system be DENIED.

DONE and ORDERED this 4th Florida.

day of April 1991, in Tallahassee,

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:

David & Paula Caywood, pro se 9320 Horizon Drive

Springhill, FL 34608

John L. Pearce, Esquire District Legal Counsel 2639 North Monroe Street Suite 200-A

Tallahassee, FL 32303-2949

James E. Bradwell 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: 90-006290

Orders for Case No: 90-006290