STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD W. HENDERSON and )

VIRGINIA HENDERSON, d/b/a )

Port-of-Call, )

)

Petitioner, )

)

vs. ) CASE NO. 77-801RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

STATE OF FLORIDA, )

)

Respondent. )

)

FINAL ORDER

A final hearing was held in the above-captioned matter, after due notice, on June 7, 1977, at Tallahassee, Florida, before the undersigned hearing officer.

APPEARANCES

For Petitioner: John W. Meshad, Esquire

100 South Washington Boulevard Sarasota, Florida 33577

For Respondent: Eric J. Haugdahl, Esquire

1323 Winewood Boulevard, Room 406

Tallahassee, Florida 32301 ISSUE

Whether Rules 10D-6.25(1) and 10D-6.32(8), Florida Administrative Code, constitute an invalid exercise of delegated legislative authority.

At the hearing, the parties stipulated that the hearing would not be concluded until the submission of posthearing stipulation of facts and affidavits and counter-affidavits, if desired, by June 24, 1977. After the hearing, the parties further stipulated that the hearing would not be considered concluded until July 25, 1977.

FINDINGS OF FACT

1. The parties stipulated to the following facts:

2. Petitioners Edward W. Henderson and Virginia Henderson are the owners of the Port-of-Call resort apartments, which is located on the following described piece of property, situated in the Town of Longboat Key, Sarasota County, Florida, to wit:

   
   

   Lots 7, 8, 9, 10, 27, 28, 29 and 30, Block D,

   and Lot 9, Block B, Coquina Beach, as per plat thereof, recorded in Plat Book 1, Page 203, Public Records of Sarasota County, Florida, and the northerly 25 feet of Lot 7, Block D, Coquina Beach, as per plat thereof, recorded in Plat Book 1, Page 203, Public Records of Sarasota, County, Florida.

   
   

3. The above-described piece of property owned by the Petitioners abuts upon a street, or other public way, containing a sanitary sewer system, constructed and maintained by the Town of Longboat Key, Sarasota County, Florida.

   
   

4. The Department of Business Regulation, Division of Hotels and Restaurants, has, pursuant to Chapter 509.221, cited the Petitioners for failure to have their resort apartments connected to an approved sewage disposal system, based upon the existence of Chapter 10D-6.25(1), and Chapter 10D-6.32(8), of the Rules of the State of Florida, Department of Health and Rehabilitative Services, Division of Health. (Petitioner's Exhibit 1).

   
   

5. As evidenced by the copy of the estimate attached (to the stipulation), and designated Exhibit "A", which was prepared at the request of the Petitioners in 1976, the cost to the Petitioners at that time of connecting to the sanitary sewer system of the Town of Longboat Key, would have been in excess of nine thousand dollars ($9,000.000). (Petitioner's Exhibit 2).

   
   

6. It is the opinion of respondent's health program officials that individual sewage disposal facilities, such as septic tanks, do not provide adequate protection of the public health in areas of population congregation. Both tank contents and drainfield effluent of such facilities may contain bacteria, viruses and other organisms harmful to man that have the potential of transmitting disease through possible contamination of ground waters if there should be a malfunction or failure to provide proper maintenance. The state has insufficient personnel to adequately monitor septic tanks to determine whether or not they are functioning in a proper manner. Rules similar to those in question have been enforced at least since 1971. (Respondent's Exhibits 1, 2).

   
   

   CONCLUSIONS OF LAW

7. Section 120.56, Florida Statutes, provides in part as follows: "120.56 Administrative determination of rule.

   1. Any person substantially affected

      by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

   2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking

      relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule."

      
      

8. The petition herein seeks to "amend or repeal" Chapter 10D-6.25(1) of the Florida Administrative Code, and as grounds therefor states that the cited rule is "invalid" for specified reasons that are constitutional in nature.

   
   

9. Respondent attacks the petition by Motion To Dismiss and in its posthearing Memorandum of Law. Its contentions are addressed as follows:

   
   

   1. The petition does not allege that the rule in question is an invalid exercise of delegated legislative authority as required by Section 120.56(1), F.S. Petitioners apparently confused the "adopt, amend or repeal" provision of the Administrative Procedure Act (Section 120.54(5)) which involves a petition to an affected agency for adoption, amendment or repeal of a rule,

      and Section 120.56 which deals with a petition for the administrative determination of the invalidity of a rule that must be directed to the Division of Administrative Hearings.

      However, this confusion was resolved by the posthearing Supplemental Petition that speci- fically alleges the rule in question and also Rule 01D-6.32(8) constitute an invalid exercise of delegated legislative authority. By stipu- lation, respondent recognized "the proper and timely filing of the Petitioner's Supplemental Petition."

   2. The petition does not state sufficient facts to show that petitioners are substantially affected by the rule. This contention was broadened in respondent's Memorandum of Law which maintained that petitioners have no

      standing to challenge the rules because respondent has not attempted to enforce them against petitioners nor does the Department of Business Regulation have the legal authority to enforce them. The rules in question appear under respondent's "Standards for Individual Sewage Disposal Facilities" and read as follows:

      
      

      "10D-6,25 Non-use of Septic Tank System.

      1. Where an existing adequate sanitary sewer of a sewerage system is available in a public right-of-way or easement abutting the property or within one hundred (100) feet of the property, sewage waste shall be connected thereto."

   
   

   "10D-6.32 Prohibitions.

   * * *

   (8) Sewer connection -- Whenever an approved sanitary sewer is made available

   (Section 10D-6.25), any individual sewage disposal system, device or equipment shall be abandoned and the sewage wastes from the residence or building discharged to the

   sanitary sewer through a properly constructed house sewer within one-hundred and eighty

   (180) days thereafter."

   
   

10. Petitioners have shown that they are substantially affected by the aforesaid rules by virtue of the fact that their place of business was cited by the Division of Hotels and Restaurants, Department of Business Regulation, on April 19, 1977 for "failure to have drainage and sewerage lines connected to lawful (sic) deposal (sic) systems." Although no statutory authority or rules were cited in the violation, the question of the Department of Business Regulation's authority to enforce respondent's rules is not in issue in these proceedings. It is sufficient for purposes of standing that petitioners have shown the rules are being enforced against them, in fact, by a state agency.

    
    

11. The third contention of respondent as to petitioners' reliance upon constitutional issues as grounds for challenge to the rules, as set forth in the original petition which basically alleges a taking of property without compensation, needs little discussion. Respondent is correct in stating that a hearing officer does not have the power to adjudicate the constitutionality of an existing rule, such power being a judicial rather than a quasi-judicial one. State Dept. of Admn., etc. v. State Dept, of Admn. etc., 326 So.2d 187 (Fla. 1st DCA 1976).

    
    

12. However, as heretofore mentioned, in their supplemental Petition petitioners further allege that the state rules are an invalid exercise of delegated legislative authority for two reasons:

    
    

    1. Chapter 381 fails to delegate to respondent the power to order the discontinuance and abandon- ment of a septic tank system which has not been found to constitute a nuisance or impose any threat to the health, welfare and safety of the public.

    2. The state legislature has declared and defined the statutory regulations dealing with individual sewage disposal facilities in Section 381.272, and therefore the area has been "preempted" by the legislature and respondent is without authority to adopt and promulgate rules in the same legislative area which are inconsistent with the laws passed by the state legislature.

    
    

13. Section 381.031 sets forth the duties and powers of the respondent and provides in part that:

    
    

    1. It shall be the duty of the Division of Health to:

       * * *

       1. Adopt, promulgate, repeal, and

          amend rules and regulations consistent with law regulating:

          1. Control of communicable diseases.

          2. Prevention and control of public health nuisances.

          3. . . . disposal of excreta, sewage or other wastes . . . trailer, tourist, recreation and other camps offering accommodations to the public . . . and any other condition, place, or establishment necessary for the control of communicable diseases or the protection and safety (light and ventilation) of the public health."

       
       

       In view of the above broad statutory grant of power, there is no question but that respondent has been delegated authority to promulgate lawful rules relative to septic tanks and other methods of sewage disposal. The key question then is whether respondent's rules that require discontinuance of septic tanks and connection with a central sewer system when available are reasonable in the interest of public health. State ex rel. Furman v. Searcy, 225 So.2d 430 (Fla. 4th DCA 1969).

       
       

14. Petitioners' claim that Chapter 381 fails to delegate specific authority to respondent to order the discontinuance of a septic tank system that is not a nuisance nor any threat or harm to the public goes to the sufficiency of the statute itself and cannot be addressed in an administrative proceeding. It might well be that a court could find the legislature had failed to provide sufficient guidelines or standards in this respect for the respondent agency, but such matters are not within the purview of a hearing officer.

    
    

15. Petitioners' argument that the subject of individual sewage disposal facilities has been preempted by Section 381.272 and that respondent is without authority to issue rules in that area that are inconsistent with that statutory provision is not well taken. Section 381.272 permits individual sewage disposal in subdivisions provided that a municipal or investor-owned public sewerage system is not available nearby. It further provides that respondent may adopt variances in hardship cases and expresses the state legislative policy to require all individual sewage disposal systems developed under Section 381.272 to connect to a public or investor-owned sewerage system within one hundred eighty days from the date that it becomes available. Contrary to petitioners' assertion, the contested rules are in cosonance with and do not conflict to any appreciable degree with Section 381.272. The mere fact that the statute concerns itself with future installations rather than preexisting ones does not foreclose respondent from promulgating legislative rules on the subject of the latter. The statutory provision does not purport to oust respondent from rule- making in specific areas where the legislature has not spoken.

    
    

16. The crucial issue is whether or not respondent's rules are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious. Florida Beverage Corp., Inc. v. Wynne, 306 So.2d 200 (Fla. 1st DCA 1975). In this connection, every reasonable presumption must be indulged in favor of the validity of regulations of health authorities issued pursuant to the police power. Varholy v. Sweat, 15 So.2d 267 (Fla. 1943). A rule or regulation of an administrative agency is deemed prima facie reasonable and valid. Florida Citrus Commission v. Golden Gift, Inc., 91 So.2d 657 (Fla. 1957). Petitioners contend that the rules under consideration are unreasonable because their enforcement would result in the interruption and deprivation of the continuing right of enjoyment and use of their property. They further point to the fact that their septic tanks are in good working condition and do not create a nuisance or hazard to health, safety and welfare. They also argue that the rules make no allowances for variances in individual cases based on hardship, financial loss and the like. Although respondent has provided in Rule

    10D-6.21(12)(a) that a variance may be granted to relieve excessive hardship, this only applies in cases involving minor deviations from established standards. Although respondent might be well-advised to extend that rule to apply in cases of this nature involving substantial financial loss, such remedial action must be addressed in a Section 120.54 petition to the agency for amendment of the rule rather than an attack, as here, upon validity of rules.

    
    

17. Respondent showed that it has enforced similar rules for a considerable length of time and such a long-standing policy is entitled to great weight. The concept of requiring septic tank owners to connect to available sewerage systems when available was judicially approved in Peoples Water Service

    v. Adkinson, 184 So.2d 707 (Fla. 1st DCA 1966) which involved a question of whether a property owner whose cesspool was in good working order must connect with a municipal sewerage system. In that case, the Court stated as follows:

    
    

    "It is well settled that the sanitary disposal of human waste is an essential function of a municipality. A city sewerage system cannot effectively function upon a 'tic tac toe' system, that is, connect one dwelling, skip a dwelling, and connect the next one. Where one septic tank might not be injurious to a neighbor, two septic tanks could well be injurious to the health of the community. It is upon this premise that legislative acts have been properly enacted authorizing municipalities to construct and operate sewerage systems, and provide for the revenues to carry out such commendable objective "

    
    

    The above language can be applied to the circumstances of this case to buttress respondent's claim that its rules are reasonable and proper.

    
    

18. In view of the foregoing, it is concluded that petitioners have not successfully established that the rules in question constitute an invalid exercise of delegated legislative authority.

DONE and ORDERED this 9th day of August, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

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

(904) 488-9675

COPIES FURNISHED:

Eric J. Haugdahl, Esquire Administrative Procedure Committee Dept. of Health and Room 120, Holland Building

Rehabilitative Services Tallahassee, Florida 32304 1323 Winewood Boulevard

Tallahassee, Florida 32301 Department of State

403 E. Gaines Street

John W. Meshad Tallahassee, Florida 32302

100 South Washington Boulevard Sarasota, Florida 33577

Docket for Case No: 77-000801RX

Orders for Case No: 77-000801RX