Respondent. )
This case was heard pursuant to notice on February 19, 1981, in Clearwater, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter arose on an Administrative Complaint filed by the Department of Health and Rehabilitative Services against J. Armand Martin seeking to rescind a variance in the construction of an individual sewage disposal system (septic tank) on the grounds that Martin misrepresented or failed to represent material facts in his application for the variance.
For Respondent: J. Armand Martin, pro se
The parties stipulated that the sole issue to be resolved was whether the Respondent misrepresented his application by failing to reveal the existence of certain water on his property.
J. Armand Martin is the owner of a lot located in Pasco County, Florida, which includes an island surrounded by a body of water known as Sleepy Lagoon and a 15-foot strip of land on the mainland. This case arose out of Martin's efforts to develop this lot and construct a personal residence on the island. Residential dwellings surround the lagoon and Martin's island.
In order to build a residence on the island, Martin had to install a septic tank. To install a septic tank Martin had to apply for a permit to install an individual sewage disposal system. It was Martin's original intent to locate the sewage treatment facility on the mainland and pipe the sewage over the bridge he planned to build to access his island. Martin made application for the required septic tank permit to the Pasco County Health Department.
The inspector from the Pasco County Health Department was taken aback by the situation she encountered when she did the preliminary inspection and called in her supervisor, Donald Van Kampers, for assistance. Van Kampers eventually inspected the island and suggested that Martin put his individual sewage disposal system on the island itself, pointing out that because the island was so low the installation would probably have to include a sand filter system and possibly a chlorinating system. Van Kampers also advised Martin that he would have to seek a variance from the Staff Director of the Health Program Office pursuant to Rule 10D-6.21, Florida Administrative Code, because the island was so narrow that the system would be within 50 feet of the lagoon's waters contrary to Rule 10D-6.24(4), Florida Administrative Code.
Martin received assistance from Van Kampers on his application for the variance. This application called for the filing of a site plan drawn to scale. In addition to being surrounded by Sleepy Lagoon, Martin's island circumscribes a small body of water variously referred to as a pond, lagoon and even "wetlands." Martin transmitted to Van Kampers a surveyor's drawing of his island which did not show the island's own small body of water. In an effort to assist Martin, Van Kampers filled in the proposed location of Martin's house and the individual sewage disposal system (septic tank with sand filter) on this surveyor's drawing, attached it to Martin's request for a variance and forwarded it to the Staff Director for the Health Program Office together with a recommendation of approval by the Pasco County Health Unit. This drawing did not show the body of water on the island. The Staff Director forwarded the application to the Review Committee which he appoints to review applications for variances. There is no evidence that Martin saw this drawing prior to the Review Committee's approval of the variance which, with the affirmative recommendation of the Pasco County Health Unit, was summarily granted.
Subsequently, several of the residents surrounding Sleepy Lagoon and Martin's island became concerned about the potential problems which Martin's individual sewage disposal system would have on their lagoon, its environment and its ecology. Their complaints eventually came to the attention of the Staff Director of the Health Program Office, who in turn forwarded the matter to John Heber, the Department's representative to the Review Committee, for investigation.
Heber conducted a personal inspection of Martin's island and compared it with the drawing filed by Van Kampers in Martin's behalf. Heber found that according to the drawing the individual sewage disposal system would be located in the middle of the water on Martin's island. Having made this discovery, Heber initiated actions which resulted in the Issuance of an Administrative Complaint to have the variance issued Martin rescinded. The Administrative Complaint alleged that Martin had "misrepresented" facts on his application for the variance by not showing the water on his island. Martin made a timely request for a formal hearing on the allegations.
Martin did not fill out the drawing which accompanied his application. It was filled out by Van Kampers, who did not draw in the island's water and put
the individual sewage disposal system in the middle of where the water is currently located.
Van Kampers and his supervisor, both of whom visited the island, did not consider the water on the island subject to the rules which call for the reporting of lakes, streams or canals. See Rule 10D-6.23(2)(a), Florida Administrative Code. In regard to their classifications of surface waters, they are the officials charged under the regulatory scheme with determining when applicants must seek a variance. Applicants must seek a variance when, like Martin, their septic tanks are too close to certain surface waters. See Rule 10D-6.24(4), Florida Administrative Code. Clearly, they determine when a permit will be issued, when an applicant is required to seek a variance, and what waters must be reported on the scale drawing. In the instant case they classified Sleepy Lagoon as protected waters requiring Martin to seek a variance and the water on the is land as unprotected waters not requiring their inclusion on the drawing, because they determined the water was not a lake, stream or canal. The facts show that this water is not a lake, stream or canal.
Under the Department's policy a sewage system can only be constructed as drawn and presented in the application for a variance. If the system in question were constructed, it would require the filling of the area where the water is located. The drawing accurately reflects the post-construction situation with the water not shown.
CONCLUSIONS OF LAW
The Review Committee of the Department of Health and Rehabilitative Services has authority to issue and thereby presumably to revoke variances. County health units of the Department have authority to issue septic tank permits and make determinations when applicants must seek variances.
The Department in this case seeks to revoke Martin's variance because he did not include the water on his island in his scale drawing. Rule 10D- 6.23(2)(b) , Florida Administrative Code, provides that "surface waters such as lakes, streams or canals" be reported on the scale drawing. A major principle of statutory construction is that the listing of certain things excludes other things. Clearly, the water on Martin's island is not a lake, stream or canal.
As stated above, county health units have the authority to issue permits and the authority to determine when variances must be requested. See Rule 10D-6.21, Florida Administrative Code. It is inherent in the county health units' authority that they exercise administrative discretion in assessing the character of surface waters because a variance must be requested if an installation is within 50 feet of such waters. Clearly, the county health units' classification of such waters is entitled to great weight. Further, if the system were built as indicated on the drawing, the water on the island would be filled and would not exist. The drawing is supposed to depict the completed project. There would be no need to depict the water if it were filled.
The water on Martin's island was not concealed on the application but was determined by Van Kampers not to be reportable. The record shows Van Kampers and his supervisor initially determined that this surface water was not subject to Rule 10D-6.23 (2)(b), Florida Administrative Code. Certainly, if filled, the water was not reportable. Under these circumstances Martin cannot be held to have concealed or misrepresented his application by failing to include the water in question on his application.
