STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID D. BOAK, )

)

Petitioner, )

)

vs. ) CASE NO. 83-0940

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 13, 1984, at Tampa, Florida.

APPEARANCES

For Petitioner: David D. Boak, pro se

9610 East Flora Street Tampa, Florida 33610

For Respondent: Amelia Park, Esquire

Department of Health and Rehabilitative Services

4000 West Buffalo Avenue Tampa, Florida 33614

By letter dated March 23, 1983, Petitioner, by and through his attorney, requested a formal hearing to contest the denial of his application for variance to install a septic tank on his property at 9602 East Flora Street, Hillsborough County. The case was originally scheduled to be heard July 25, 1983, but was continued at the request of Petitioner when his attorney was granted leave to withdraw.

At the hearing Petitioner testified in his own behalf, Respondent called two witnesses, and 11 exhibits were admitted into evidence.

FINDINGS OF FACT

1. David D. Boak, Petitioner, owns a 3/4 acre lot at 9602 East Flora Street on which he proposes to put a two-bedroom house trailer. The area is rural in nature. There is no sewage service to the area and none is currently planned.

   
   

2. Soil samples taken at the site show that from 9 inches to 48 inches below the surface the soil is a mixture of Manatee and Pompano fine sands which have poor percolation qualities. Soil Survey for Hillsborough County (Exhibit

   1) describes the limitations of these soils for septic tank use as severe with wetness.

   
   

3. Petitioner contends that he has lived on this property for 21 years and has had his septic tank pumped out once, 11 years ago; that he has never seen this property flooded; nor has he seen water standing on the property more than minutes following a heavy rain. Respondent's witnesses testified the water table at this site is 13 inches below the surface and septic tanks will not work properly in this area.

   
   

4. When Petitioner's initial application for a permit was denied, he applied for a waiver. The application for waiver was presented to the review group pursuant to the provisions of Rule 10D-6.45(1), Florida Administrative Code, and the review group recommended the waiver be granted. However, the Staff Director, Health Program Office, denied the waiver and this appeal followed.

   
   

5. The Hillsborough County Aviation Authority has condemned the land in this area, including that owned by Petitioner, for use as a county airport site. That condemnation proceeding is currently in litigation. If this property is ultimately taken for airport purposes, Petitioner will have no use for the variance here sought.

   
   

6. Testimony was presented that the soil conditions plus the wetness factor make the site unsuitable for the installation of a septic tank. No evidence was presented regarding the pollution of surface waters by a septic tank in this area or whether public health will or will not be impaired if a septic tank is installed.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

8. Requirements for septic tank permits are contained in Chapter 10D-6, Florida Administrative Code. Variances are provided for in Section 10D-6.45, Florida Administrative Code, and subsection (3) thereof provides:

   
   

   Upon consideration of the merits of each application and the recommendations of the review group, the Staff Director, Health Program Office, has discretionary authority to grant a variance from certain provisions of this Chapter. Such 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 public health will not be impaired or that pollution of surface or ground water will not result. The decision to grant or deny a variance may be appealed through an administrative hearing.

   
   

9. Absent evidence that clearly shows the installation of the proposed septic tank will not impair public health or pollute surface or ground water, it cannot be said the Staff Director abused his discretion in denying the variance requested.

10. Here, the Petitioner has the burden of showing, by a preponderance of the evidence, that the installation of the septic tank, as proposed, will not constitute a danger to the public health or be a source of pollution to surface or ground water. Balino v. Department of Health and Rehabilitative Services,

348 So.2d 349 (Fla. 1st DCA 1977). This burden, he has failed to meet. It is therefore

RECOMMENDED the appeal of David D. Boak from the denial of his application for variance to install a septic tank on property located at 9610 East Flora Street, Tampa, Florida, be dismissed.

ENTERED this 3rd day of August, 1984, at Tallahassee, Florida.

K. N. AYERS, 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 3rd day of August, 1984.

COPIES FURNISHED:

Mr. David D. Boak 9610 East Flora Street Tampa, Florida 33610

Amelia Park, Esquire Department of Health and

Rehabilitative Services

W. T. Edwards Facility 4000 West Buffalo Street Tampa, Florida 33614

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-000940

Orders for Case No: 83-000940