STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. KLEIN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-3333

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 10, 1996, a formal administrative hearing in this case was held by video conference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William E. Klein, Pro Se

Thomas Lewis, Representative 8716 Ruth Place

Tampa, Florida 33604

For Respondent: Raymond R. Deckert, Esquire

Department of Health and Rehabilitative Services

4000 West Martin Luther King Jr., Boulevard Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner is entitled to variances from the requirements of Rule 40D-0.27(2), Florida Administrative Code.

PRELIMINARY STATEMENT

By letter dated May 29, 1996, William E. Klein requested that he receive waivers from certain Florida Administrative Code requirements related to limited use community public water system permits. By letter dated June 3, 1996, the Department of Health and Rehabilitative Services notified William E. Klein that his request for variances was denied. By letter of July 8, 1996, Mr. Klein requested a formal administrative hearing. The request was forwarded to the Division of Administrative Hearings which scheduled the formal proceeding.

At the hearing, Mr. Klein testified on his own behalf and had exhibits numbered 1-3 admitted. The Department presented the testimony of one witness and had exhibits numbered 1-6 admitted. A prehearing stipulation filed by the parties has also been admitted.

At the hearing, Mr. Klein was aided by Thomas Lewis. Although Mr. Lewis did not meet the requirements of Rule 60Q-2.008, Florida Administrative Code, and was not accepted as a Qualified Representative, Mr. Klein stated that he desired Mr. Lewis' assistance. Without objection, Mr. Lewis was permitted to remain and assist Mr. Klein in order to facilitate the proceeding.

No transcript was filed. Both parties filed proposed recommended orders.

FINDINGS OF FACT

1. William E. Klein (Petitioner) owns two water wells, both in Tampa, Florida. Each water well serves three rental units which are also owned by the Petitioner.

   
   

2. One well is located at 302 East North Bay Street. The second well is located at 4113 North Suwanee Street.

   
   

3. Each water well is classified as a "limited use community public water system" as defined by Rule 10D-4.024(13)(b), Florida Administrative Code.

   
   

4. The wells have been in existence for perhaps as long as eighty years.

   
   

5. As of January 1, 1993, limited use community public water system wells must obtain permits to operate. Permits are issued by the Department of Health and Rehabilitative Services.

   
   

6. The relevant permit requirements include water testing, submission of an application and a site plan, and payment of a fee.

   
   

7. By February 23, 1996, the Department was aware of the Petitioner's wells and had provided notice of the permit requirements to the Petitioner.

   
   

8. The Petitioner has met the water testing requirements, but has not submitted applications, site plans, or applicable fees related to these two wells.

   
   

9. On May 30, 1996, the Petitioner filed applications for variances, seeks to be excused from submitting the applications, site plans and fees.

   
   

10. On June 3, 1996, the Department denied the Petitioner's requests for variances.

    
    

11. As grounds for the variance requests, the Petitioner cites financial hardship which will be imposed by payment of the fees.

    
    

12. According to the stipulation filed by the parties, the application fee for each well is $110. Of the fee, $75 is retained by the state and $35 is retained by Hillsborough County, where the Petitioner's wells are located.

    
    

13. The evidence fails to establish that the Petitioner is entitled to the requested variances.

    
    

14. The evidence fails to establish that there are any costs related to submission of site plans. The Petitioner may prepare and submit site plans without assistance.

15. The evidence fails to establish that there are any costs related to submission of a completed applications for permits.

    
    

16. The evidence fails to establish that the total fee of $220 related to the issuance of well permits for six rental units will cause a financial hardship for the Petitioner. At most, the evidence indicates that the payment of the fee may reduce the Petitioner's profit from the rental units.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. In relevant part, a "Limited Use Community Public Water System" is defined as a water system not covered by the Florida Safe Drinking Water Act and serving two more rental residences with piped potable water. Rule 10D- 4.024(13), Florida Administrative Code.

    
    

19. The Department of Health and Rehabilitative Services is responsible for administration of limited use community public water system wells permitting. Section 381.0062(3), Florida Statutes.

    
    

20. Rule 10D-4.027(2), Florida Administrative Code, sets forth the requirements for permitting existing limited use community public water system wells. The requirements include completion of a permit application (HRS form H- 4092), payment of a $75 application processing fee the first year ($70 for each year thereafter), and submission of a site plan, drawn to scale, identifying the location of the water source, the property boundaries and contaminant sources.

    
    

21. Hillsborough County Resolution Number R88-0052 sets forth a fee of $35 for county health services provided in relation to inspection and water sampling costs.

    
    

22. The rules set forth applicable criteria to be utilized in determining whether a variance from the permit requirements should be issued.

    
    

23. "Variance" is defined as "a sanction from the department affording a supplier of water an extended time to correct a maximum contaminant level violation caused by the source water quality or to deviate from construction standards established by this rule, or to provide an alternate source of potable water." Rule 10D-4.024(28), Florida Administrative Code.

    
    

24. In relevant part, Rule 10D-4.032, Florida Administrative Code, provides as follows:

    
    

    Variances

    1. A variance from any section of this rule may be requested by the supplier of water. Applications for variances shall be submitted to the HRS CPHU utilizing Form HRS-H 4094. Each application shall be accompanied by supportive materials and documents such as a copy of the property deed, site evaluation data, plans and specifications for the proposed system, a statement regarding the existence of a

       hardship, information regarding adjacent property and any other information necessary for rendering a decision....

       (2)...A variance may be granted to relieve or prevent excessive hardship only in cases involving minor deviation from established standards when it is clearly shown that the hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists and where proper use of the water system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public.

       (3) In reviewing the request, the department shall consider such factors as:

       * * *

       (f) Economic hardship for the applicant....

       
       

25. According to the rules, variances may be granted to permit extension of deadlines for correction of contaminant level violation caused by the source water quality. Variances may also be granted for specific construction standards or to provide an alternate source of potable water.

    
    

26. The requirement that the Department consider financial hardship is clearly directed towards costs associated with corrections of contaminant level violations and for construction requirements.

    
    

27. The rules do not provide for an award of a variance related the filing of an application or a site plan, or for payment of application fees.

    
    

28. Reductions in owner profit do not constitute financial hardship under the applicable rules.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services enter a Final Order denying the Petitioner's requests for the variances at issue in this case.

DONE and ENTERED this 18th day of November, 1996, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1996.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health

and Rehabilitative Services 1317 Winewood Boulevard Building 2, Room 204X

Tallahassee, Florida 32399-0700

Richard Doran, General Counsel Department of Health

and Rehabilitative Services 1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

William E. Klein, Pro Se Thomas Lewis, Representative 8716 Ruth Place

Tampa, Florida 33604

Raymond R. Deckert, Esquire Department of Health

and Rehabilitative Services

4000 West Martin Luther King Jr., Boulevard Tampa, Florida 33614

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003333

Orders for Case No: 96-003333