STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY SEYMOUR, )

)

Petitioner, )

)

vs. ) CASE NO. 77-446

) BROWARD COUNTY HEALTH DEPARTMENT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Ft. Lauderdale, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on June 14, 1977. The parties were represented by counsel, as follows:

For Petitioner: Mr. Christopher B. Knox, Esquire

Suite 302A, Medical Towers

303 Southeast 17th Street

Ft. Lauderdale, Florida 33316

For Respondent: Mr. Howard L. Braynon, Esquire

5920 Arlington Expressway Post Office Box 241F Jacksonville, Florida 32231

By petition for review of denial of septic tank permit application, petitioner sought to overturn respondent's denial, on November 17, 1976, of petitioner's amended application for a permit to install a septic tank on lot 220A of Pine Tree Estates, located on 62nd Terrace, Parkland, Broward County, Florida. Respondent's motion for continuance, made ore tenus on June 14, 1976, was denied. Petitioner's counsel agreed to proceed without a court reporter at the final hearing, when it developed that respondent had made no provision for the hearing to be reported. Petitioner testified in his own behalf and introduced two exhibits. Respondent called Mr. Norman Tuckett, Jr., respondent's director of environmental engineering, and Mr. Willis A. Hillyer, a sanitary engineer in respondent's employ. Respondent introduced six exhibits, including photographs of lot 220A taken on June 13, 1977.

FINDINGS OF FACT

1. Petitioner Jerry L. Seymour owns lot 220A in Pine Tree Estates, a parcel of slightly over one acre, approximately 140 feet by 330 feet, situated in Broward County, Florida. Petitioner's lot is substantially overgrown with vegetation, including swamp cabbage, myrtle, sawgrass, ferns, palmetto and cypress. The soil consists of cap rock, muck, sandy loam, humus and sand. On June 13, 1977, the day before the final hearing, standing water a few inches deep covered major portions of lot 220A, including the southern one-third and eastern edge of the lot. In short, lot 220A lies in a low, swampy area.

2. The ground water level varies directly with rainfall. On June 13, 1977, the ground water was not quite as high as the crown of the road adjoining the lot. Rainfall in the area on June 12 or 13, 1977, if any, was not extraordinary. Historically, annual rainfall in Broward County has averaged 60 inches, but annual rainfall since 1970 has been below this average. According to petitioner's testimony, the water table has dropped a foot in the past year.

   
   

3. After Petitioner's initial application for a permit for installation of a septic tank on lot 220A had been turned down, he filed an amended application in which he proposed to remove impervious materials from an area approximately

   130 feet by 140 feet and to refill the excavation, to a height of 42 inches above the adjacent road, with soil of a kind that would facilitate drainage. In his letter denying petitioner's amended application, Mr. Hillyer, on behalf of respondent, wrote:

   
   

   Inasmuch as the lot in question does not comply with the above referenced code requirements we can not issue a septic tank permit at this time. However, if Mr. Seymour wishes to remove the muck in the area of the drainfield and fill the property as outlined on the survey submitted to the 42" above the crown of the road mentioned in your letter, this department will be in a position to

   re-evaluate this property as to whether or not a septic tank permit can be issued.

   
   

   Petitioner's amended application also indicated that a "Chromaglass Model CA-900 Aerobic Treatment Unit" together with a chlorinator and chlorine contact chamber would be installed, instead of a conventional septic tank; and that the installation would be in an absorption field of at least 300 square fee, and at a distance of at least 125 feet from the well petitioner proposed to drill on the lot. In addition, petitioner proposed to dredge a swale as a means of draining lot 220A.

   
   

4. Petitioner also owns lot 220B in Pine Tree Estates, which lies immediately west of lot 220A, and shares a north-south boundary with lot 220A. The lots are about the same size and about equally swampy, although the soil in lot 220B is slightly less sandy. When petitioner's application for a permit to place a similar aerobic treatment unit on lot 220B was denied, he petitioned for an administrative hearing. The recommended order which resulted was accepted in evidence at the final hearing in this matter. That recommended order concludes:

   
   

   Wherefore, the Hearing Officer finds that if the planned drain field is installed on a 100' x 140' pad filled an additional 23 inches above its current pad level it will be 42 inches from the October, 1974 high water table measure, meeting the criteria established by law and I would recommend its approval. Jerry Seymour v. Broward County Health Department, State of Florida, No. 75-1059 (DOAH; October 10, 1975)

   
   

   No final order in Case No. 75-1059 was offered in evidence at the hearing in the present case.

   CONCLUSIONS OF LAW

   
   

5. At the final hearing, petitioner argued res judicata with respect to the recommended order that came in evidence, notwithstanding a rules change between the time of the recommended order and the hearing in the present case. Rules 10D-6.04 and 10D-6.05, F.A.C., which were in effect at the time the recommended order in Jerry Seymour v. Broward County Health Department, State of Florida, Department of Health and Rehabilitative Services, No. 75-1059 (DOAH; October 10, 1979) was entered are no longer in force as such. The substance of these earlier rules, however, is now embodied in Rules 10D-6.24 and 10D-6.25, F.A.C.

   
   

6. By letter dated July 11, 1977, counsel were requested to advise the hearing officer whether a final order had been entered in Case No. 75-1059. Inasmuch as counsel have not responded to the letter of July 11, 1977, it is unnecessary to decide whether the record should be reopened to receive the final order in Case No. 75-1059, if a final order was in fact entered.

   
   

7. In any event, no order entered in case No 75-1059 can operate as res judicata with respect to the present case, because of the settled principle that every parcel of real estate is unique, as a matter of law, see Hogan v. Norfleet, 113 So.2d 437 (Fla. 2d DCA 1959). The present case involved lot 220A while lot 220B was the subject of Case No. 75-1059. Identity of subject matter is a necessary element of res judicata which is lacking here. Nor can the doctrine of collateral estoppel have application in the present case, because the recommended order in Case No. 75-1059, the only order received in evidence, is not a final order. Unless and until adopted as its own by the referring agency, a hearing officer's recommended order is not binding even in the litigation in which it arises, much less in collateral matters.

   
   

8. If a septic tank is to be installed, Rule 10D-6.24(1), F.A.C., requires that it be located "so that with reasonable maintenance it will function in a sanitary manner, [and so that it will] not create. . .[a] health hazard. .." and Rule 10D-6.24(5), F.A.C., provides specifically that "[i]nstallation. . .not be made in filled areas unless thoroughly and mechanically compacted or until allowed to settle for a period of at least six (6) months, in low swampy areas with high water table (permanent, fluctuating or seasonal), or areas subject to flooding." Petitioner failed to show that the sewage disposal system which he proposes for lot 220A meets these criteria.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for a permit for construction of a septic tank, with leave to petitioner to refile an application if changed circumstances warrant.

DONE and ENTERED this 2nd day of August, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Mr. Christopher B. Knox, Esquire Suite 302A, Medical Towers

303 Southeast 17th Street

Ft. Lauderdale, Florida 33316

Mr. Howard L. Braynon, Esquire 5920 Arlington Expressway

Post Office Box 241F Jacksonville, Florida 32231

Docket for Case No: 77-000446

Orders for Case No: 77-000446