STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAMUEL M. TORRENCE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-3383

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE ) SERVICES and BAY COUNTY HEALTH ) DEPARTMENT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 31, 1983, in Panama City, Florida.

APPEARANCES

For Petitioner: Samuel M. Torrence

Post Office Box 7106 Dothan, Alabama 36302

For Respondent: John Pearce, Esquire

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

ISSUES

This case arises out of the Petitioner's objection to the issuance of a septic tank permit for property adjacent to his lot in Panama City Beach, Florida. The sole issue before the Hearing Officer, as alleged by Petitioner's pleading, is whether the applicant's permit for septic tank should be denied on the basis that it is in violation of Rule 10D-6.24, Florida Administrative Code, which requires that no septic tank be placed within 75 feet of a private water supply well. On November 15, 1982, by certified mail, the Bay County Health Department notified Petitioner of its intent to grant a permit for a septic tank at 6713 Gulf Drive, Panama City Beach, Florida. Thereafter, on December 13, 1982, Respondent filed a petition for formal proceeding, objecting to the issuance of the aforementioned permit and requesting a formal hearing. Pursuant to notice, a formal hearing was held at which the Petitioner testified on his own behalf and also called Paul Miller, an Environmental Sanitarian for the Bay County Health Department as a witness. Respondents called as witnesses Michael Sarra, Bay County Health Department, William Curtis Wright, and Thomas F. Gladstone. Petitioner offered and had admitted two exhibits and Respondents offered and had admitted three exhibits. The Petitioner, subsequent to the

formal hearing, filed with the undersigned Hearing Officer two late-filed exhibits. No permission had been granted or requested at the formal hearing for the filing of late-filed exhibits and, therefore, those exhibits were neither considered nor utilized as a basis for the Findings of Fact or Conclusions of Law in this Recommended Order.

Petitioner submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact are not adopted herein, they were considered by the undersigned Hearing Officer and determined to be irrelevant to the issues in this cause or not supported by the evidence.

FINDINGS OF FACT

1. On or about June 15, 1982, Mr. Dewayne Dilmore, by and through his contractor, Tom Gladstone, applied for a septic tank permit for a new residence located at 6713 Gulf Drive, Panama City Beach, Florida (See Petitioner's Exhibit B). After a required change in the design drawings reducing the structure from a 3-bedroom to a 2-bedroom residence, the application was determined to be in compliance with all statutory and regulatory requirements and was approved by the Bay County Health Department.

   
   

2. Petitioner, Samuel M. Torrence, owns a residence at 6715 Gulf Drive, Panama City Beach, Florida. This home is west of and contiguous to Mr. Dilmore's lot. In response to a Notice of Intent to issue a septic tank permit for the adjacent lot, 6713 Gulf Drive, Mr. Torrence objected on the grounds that such septic tank would be located within 75 feet of his private water supply well.

   
   

3. Prior to the June 15, 1982, application by Mr. Dilmore, there was an existing septic tank on Mr. Dilmore's lot. This septic tank had been on the lot since April, 1961. The Petitioner's home at 6715 Gulf Drive was constructed in 1968 or 1969.

4 The replacement septic tank on the applicant's lot will be located farther from the Petitioner's property than the existing septic tank.

1. The testimony of Paul Miller and Michael Sarra, along with the approved application, establish that the application of Dewayne Dilmore and the proposed replacement septic tank meet all requirements of Rule 10D-6.24, Florida Administrative Code, and Florida Statute 381.272(1982).

   
   

2. Approximately two years ago, Mr. Torrence had his home at 6715 Gulf Drive hooked into city water, and has no private well hooked up to any of the pipes of his home. Although the Petitioner contended that the replacement septic tank would be within 75 feet of a private well on his property, there was no evidence in the record of the specific location on his property of a private well or any measurements he had made. The evidence does not show that there is in fact a private well within 75 feet of the location of the replacement septic tank.

   
   

3. The Department of Health and Rehabilitative Services has an established policy of grandfathering existing septic tanks, and this policy permits the septic tank on the Dilmore property as a replacement of an existing septic tank regardless of whether said tank would be located within 75 feet of a private water supply well on the Petitioner's property.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this action.

   
   

5. The sole issue as framed by the Petition for Formal Proceeding, filed by the Petitioner, is whether the septic tank permit requested by the applicant, Dewayne Dilmore, will violate Rule 10D-6.24 by being located within 75 feet of a private water supply well on Petitioner's property.

   
   

6. Rule 10D-6.24, Florida Administrative Code, provides in relevant part:

   
   

   (2) Individual sewage disposal systems shall not be located laterally within seventy-five

   (75) feet of any private water supply well or within one hundred (100) feet of any public water supply well as defined in Chapter 17-22, and 10-4, F.A.C. Locations shall be downhill or at lower elevations than the water supply wells where the slope of the ground permits.

   
   

7. The evidence established that the applicant's request for permit meets the requirements of Rule 10D-6.24, Florida Administrative Code. The applicant has met its burden of showing entitlement to the permit, and the Petitioner has failed to prove the truth of the controverted facts in his petition. The permit must, therefore, be granted. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

8. The permit should also be granted upon the grounds that it is a replacement septic tank and is, therefore, grandfathered in under the HRS policy, regardless of the requirement that septic tanks not be located laterally within 75 feet of a private water supply well.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is:: RECOMMENDED:

That the permit for septic tank be issued and Petitioner's request to halt issuance should be denied.

DONE and ENTERED this 12 day of May, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12 day of May, 1983.

COPIES FURNISHED:

Samuel M. Torrence Post Office Box 7106 Dothan, Alabama 36302

John Pearce, Esquire Department of HRS

2639 North Monroe Street Suite 200-A

Tallahassee, Florida 32303

Mr. Mike Sarra and Mr. Paul Miller

Bay County Health Department Post Office Box 1728

Panama City, Florida 32402

Mr. David H. Pingree Secretary Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 82-003383

Orders for Case No: 82-003383