STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROY RUMPZA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7798

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on March 21, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Charles G. Stephens

Messer, Vickers, et al.

Ste. 1516--Enterprise Plaza

201 E. Kennedy Blvd. Tampa, Florida 33602

For Respondent: Sonia Nieves

District 7 Legal Office Department of Health and Rehabilitative Services

400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801

STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner is entitled to the issuance of a septic tank permit.

PRELIMINARY STATEMENT

In June, 1990, Petitioner submitted to the Orange County Public Health Department site plans in connection with a request for a septic tank permit. By letter dated July 3, 1990, the Orange County Public Health Department denied the request and advised that a variance would be required. By letter dated July 17, 1990, Petitioner applied for a variance. By letter dated July 23, 1990, the Orange County Health Department returned the variance application fee contained

in the July 23 letter and requested additional information. Petitioner then submitted detailed information, in the form of a report, to justify the issuance of a septic tank permit.

By letter dated October 24, 1990, Respondent notified Petitioner that its request for a variance was denied because recent legislation precluded the use of septic tanks in areas rezoned for industrial or manufacturing use after a certain date, as was the case with respect to Petitioner's land. The letter provides Petitioner with a clear point of entry to challenge the decision not to grant him a variance.

By Petition for Formal Administrative Hearing filed November 27, 1990, Petitioner requested a hearing on the denial of a permit and variance request.

At the hearing, each party called to witnesses. Petitioner offered into evidence seven exhibits and Respondent offered into evidence two exhibits, all of which were admitted.

The transcript was filed April 25, 1991. Petitioner requested leave to file his proposed recommended order by June 20, 1991. On June 20, 1991, the parties filed a joint request for more time to file proposed recommended orders. The joint request is denied.

FINDINGS OF FACT

1. Petitioner owns land located at 6765 Narcoosee Road in Orange County. He purchased the land in 1983, at which time it was undeveloped and zoned for agricultural use. On June 25, 1990, the Orange County Commission approved the rezoning of the land for industrial use.

   
   

2. Petitioner wants to build a mini-warehouse and caretaker's residence on the land. The site is not served by central sewer. The nearest sewage system is a package plant located 0.38 miles north of the site. The package plant serves a mobile home park. Orange County policy forbids any connection to the mobile home park's sewage disposal system until the package plant is replaced by a lift station that would pump the wastewater to the closest central sewer line operated by the County. This point would be at Crossen Drive and Charlin Parkway, which is about 1 to 1 1/2 miles from Petitioner's land. The only other central sewer line in the vicinity is on Lee Vista Boulevard, but it is 1.1 miles west of Petitioner's land.

   
   

3. In June, 1990, Petitioner's engineering consultant submitted a request for a permit to install two septic tanks on Petitioner's property. The capacity of the two septic tanks would be 1000 gallons with a drainfield of 417 square feet elevated at least 36 inches above grade. The site plan, which was noted as subject to change, showed one septic tank and drainfield located near the front of the property and the other in the center of the property between the two warehouse buildings.

   
   

4. Representatives of the Orange County Health Department found several problems with the request. By letter dated July 3, 1990, the Orange County Health Department noted that, contrary to information contained in the application, the wet season water table was only about 12 inches, not 36-48 inches, from the bottom of the drainfield. Thus, the size of the required fill- pad would preclude locating the septic tank in the middle of the property. More relevant to the present case, the letter asks Petitioner to advise when the

   property was rezoned from agricultural to industrial. The letter concludes by advising that, if the Health Department determined that it was necessary to apply for a variance, Petitioner would have to submit a $150 fee.

   
   

5. By letter dated July 17, 1990, Petitioner's engineer enclosed a check for $150 and requested a variance. By letter dated July 23, 1990, the Orange County Health Department returned the check and requested the additional information concerning the rezoning.

   
   

6. By letter dated August 20, 1990, Petitioner's engineer again enclosed a check for $150 and requested a variance. On August 22, 1990, Petitioner executed an application for a variance from Chapter 10D-6 on the grounds of hardship. The request is for two 1000-gallon septic tanks.

   
   

7. By letter dated September 26, 1990, Respondent acknowledged Petitioner's request for a variance from the requirements of Chapter 10D-6 and advised that the request had been placed on the agenda of the Variance Review Group, which was meeting on October 4, 1990.

   
   

8. The Variance Review Group met and recommended that the variance be granted. However, by letter dated October 24, 1990, Respondent advised Petitioner that the request for variance was denied. The reason for the denial was that recent legislation prohibited septic tanks in areas rezoned from agricultural to industrial uses after July 5, 1989.

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

10. Section 381.272(9) provides in relevant part:

    
    

    No construction permit may be issued for an on-site sewage disposal system in any area zoned or used for industrial or manufacturing purposes, or its equivalent, where a publicly owned or investor-owned sewage treatment system is available, or where a likelihood exists that the system may receive toxic, hazardous, or industrial waste. In

    areas which are either zoned, rezoned, platted, or subdivided for industrial, manufacturing, or equivalent purposes after July 5, 1989, the department shall not authorize onsite sewage disposal system construction.

    
    

11. The two sentences set forth in the preceding paragraph are not in conflict. The first sentence applies to all land. The second sentence applies a more stringent requirement to land first zoned for industrial or manufacturing uses after July 5, 1989.

    
    

12. Petitioner's land was first zoned for industrial use after July 5, 1989. Thus, Respondent lacked the authority to authorize the use of a septic tank on Petitioner's land.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Health Rehabilitative Services enter a final order denying Roy Rumpza's request to permit the installation of two septic tanks on this property.

ENTERED this 21 day of June, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 21 day of June, 1991.

COPIES FURNISHED:

Charles G. Stephens Messer, Vickers, et al. Bayport Plaza, Suite 1040

6200 Courtney Campbell Cswy. Tampa, FL 33607

Sonia Nieves

District 7 Legal Office

Department of Health and Rehabilitative Services

400 West Robinson St. South Tower, Suite 5827 Orlando, FL 32801

Linda K. Harris, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Sam Power Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 90-007798

Orders for Case No: 90-007798