STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERNEST AND IRENE SCHUSTIK, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 83-1516

)

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, and ) HAL THOMAS REID ASSOCIATES, )

)

Respondents. )

)

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 August 26, 1983, at Crystal River, Florida.

APPEARANCES

For Petitioner: Ernest and Irene Schustik, pro se Route 4, Box 407

Crystal River, Florida 32629

For Respondent, James Sawyer, Esquire Department of HRS District III

Health and 1000 Northeast 16th Avenue Rehabilitative Building H

Services: Gainesville, Florida 32601

For Respondent, Clark A. Stillwell, Esquire Reid: Post Office Box 250

Inverness, Florida 32651-0250

By Request for Hearing received by the Department of Health and Rehabilitative Services on May 5, 1983, Ernest and Irene Schustik, William and Katherine Craig, Nansie and Norman Merrell, A. L. Trochet, Mark and Ruth Foster, Betty Turner, and James D. and Bonita Kelly (Petitioners) protest the issuance of a permit to Hal Thomas Reid Associates (Applicant) to install a septic tank drain field on a lot owned by Reid in a residential area adjacent to a residential development known as Woods 'n Waters. As grounds therefor it is alleged that Petitioners' substantial interests will be affected as the effluent from the drain field will flow onto their property when the drain field is flooded, flow into the coastal waters of the state, contaminate these state waters, and adversely affect the health of the Petitioners who live in the vicinity of this drain field.

Citrus County, in Case 83-1742, filed a petition with the Department of Environmental Regulation to protest the issuance of a dredge and fill permit to Reid to run a pipe to the drain field at Woods 'n Waters, and petitioned to

intervene in the instant case. Prior to the commencement of this hearing, Citrus County voluntarily dismissed its petition in Case 83-1742, and withdrew as an intervenor in these proceedings.

At the commencement of this hearing the parties stipulated that Reid is the owner in fee simple of the property to be used as a drain field and that this property is zoned C-1 (commercial). Thereafter, Petitioners called two witnesses, Respondent called two witnesses, and 21 exhibits were admitted into evidence.

The parties' proposed findings, to the extent they are incorporated herein, are adopted; otherwise, they are rejected as not supported by the evidence, unnecessary to the resolution of the issues, or a mere recitation of testimony presented at the hearing.

FINDINGS OF FACT

1. On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office.

   
   

2. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet.

   
   

3. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours.

   
   

4. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane.

   
   

5. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit.

   
   

6. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days.

   
   

7. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees:

   
   

   1. To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition;

   2. To install three shallow draft monitor wells around the drain field towards the

      wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and

   3. In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department.

      
      

8. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioners' primary concern is with the site and the fact that flooding occurs on this site. Rule 10D-6.47 establishes site evaluation criteria for onsite sewage disposal systems. Among these is the requirement that the site in its original lot elevation "is not subject to frequent and long duration flooding."

    
    

11. Long duration flooding has been determined by DHRS to mean flooded for seven consecutive days. This interpretation of the rule was not challenged by the Petitioners. The interpretation of a statute, or rule, by the agency charged with its execution should be followed unless there are compelling indications that it is wrong. E. I. duPont de Nemours & Co. v. Collins, 432

    U.S. 46, 53 L.Ed 100, 97 S.Ct. 2229 (1977); Sans Souci v. Division of Land Sales, 421 So.2d 623 (Fla., 1st DCA 1982).

    
    

12. Petitioners suggest the the proper interpretation of Rule 10D-6.47(7) is that the conjunctive "and" should be read as a disjunctive "or." In rule construction, as in statutory construction, the legislative intent is the pole star by which courts must be guided. Wakulla County v. Davis, 395 So.2d 5 (Fla. 1981). Where legislative intent as evidenced by the statutes is plain and unambiguous, there is no necessity for any construction or interpretation of the statute and courts need only to give effect to the plain meaning of its terms. State v. Egan, 287 So.2d 1 (Fla. 1973). An agency, like the legislature, is conclusively presumed to have a working knowledge of the English language and when a rule has been drafted in such a manner as to clearly convey a specific meaning, the only proper function of the tribunal is to effectuate this intent. Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958).

    
    

13. Applying these principles to the rule in question, it is clear that the conjunctive "and" was used to intend that both requirements of frequent and long duration flooding occurs before a site, which meets all other criteria, is disqualified for use as a septic tank drain field. Since the site is not subject to long duration flooding, it is not disqualified for use as a septic tank drain field.

From the foregoing it is concluded that the application of Hal Thomas Reid Associates for a septic tank permit meets all of the statutory and rule criteria for the issuance of a permit. It is:

RECOMMENDED that the Petition of Ernest and Irene Schustik, et al, be dismissed and that a septic tank permit be issued to Hal Thomas Reid Associates.

ENTERED this 14th day of September, 1983, 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 14th day of September, 1983.

COPIES FURNISHED:

Ernest and Irene Schustik Route 4, Box 407

Crystal River, Florida 32629

William and Katherine Craig Post Office Box 1293

Crystal River, Florida 32629

Nansie and Norman Merrell Route 4, Box 408B

Crystal River, Florida 32629

James D. and Bonita Kelly Post Office Box 263

Crystal River, Florida 32629

Mark and Ruth Foster Route 4, Box 402

Crystal River, Florida 32629

A. L. Trochet Post Office Box F

Homosassa Springs, Florida 32647

Betty Turner Route 4, Box 406

Crystal River, Florida 32629

James Sawyer, Esquire Department of Health and

Rehabilitative Services 1000 Northeast 16th Avenue Building H

Gainesville, Florida 32601

Clark A. Stillwell, Esquire Post Office Box 250

Inverness, Florida 32651-0250

David H. Pingree, Secretary Department of Health and

Rehabilitative Services 1321 Winewood Boulevard

Tallahassee, Florida 32301

Docket for Case No: 83-001516

Orders for Case No: 83-001516