STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIO RAMOS and ELVIRA ) GONZALEZ, )

)

PETITIONER, )

) CASE NO. 87-0178

vs. )

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES )

)

RESPONDENT. )

-------------------------)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties herein, a hearing was held in this case before Hearing Officer Arnold H. Pollock, in Clewiston, Florida on September 16, 1987. The issue for consideration herein is whether Petitioners should be issued a permit to install a septic tank on their property as requested

APPEARANCES

Petitioner: Elvira Gonzalez, pro se

Mario Ramos, not present or represented 601 Saginaw Avenue

Clewiston, Florida 3344O

Respondent: Anthony N. DeLuccia, Jr., Esquire District Legal Counsel

Department of Health and Rehabilitative Services

Post Office Box 06085

Fort Myers, Florida 33906 BACKGROUND INFORMATION

By letter dated October 22, 1986, the State Health Officer at the Tallahassee headquarters of the Respondent, Department of Health and Rehabilitative Services, (DHRS), notified Petitioners that their application for a variance to install a septic tank on their property in Clewiston, Florida had been denied. Thereafter, through counsel, Petitioners requested a formal administrative hearing on the denial and the matter was referred to the Division of Administrative Hearings for hearing.

The matter was originally scheduled to be heard on June 5, 1987, but that hearing was cancelled due to the parties' failure to comply with the terms of the Order of Prehearing Instructions. The case was then scheduled for hearing on September 18, 1987, but was moved up to September 16, 1987 with the consent of the parties.

At the hearing, Petitioner, Gonzalez, testified in her own behalf and presented the testimony of Antonio Perez, an interpreter; Orvell Howard, a surveyor; and Warren McDougle, Environmental Health Director for Hendry County. Petitioner also introduced Petitioner's Exhibit 1. Respondent presented the testimony of Mr. McDougle and introduced Respondent's Exhibits A and B. The Hearing Officer agreed to take official recognition of Rules 10D-41(2) and

.14(7)(f), F.A.C., and Section 381.272(7)(a), Florida Statutes.

Neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. Petitioners own two contiguous residential lots, Lots 7 and 8, in Block

   436 of the subdivision of Block 111 in the City of Clewiston, Florida, which were transferred to them by warranty deed dated September 27, 1978. There is no issue regarding ownership of both lots.

   
   

2. Petitioners obtained a building permit from the City of Clewiston to construct a duplex residence on Lot 7 at a cost of approximately $40,000 to match the one already existing on Lot 8. Lot 8 now contains a 1050 gallon septic tank for the use of that building and in February, 1985, Petitioners applied for a permit to install another 1050 gallon septic tank for the use of the new construction. The tank was to straddle the property line between Lots 7 and 8. No written denial of the permit was ever furnished to Petitioners. The evidence indicates, however, that at some point around that time, Petitioner Gonzalez was advised verbally, by someone in the County Office, that her application was denied because the projected septic tank was to be located at least partly on both lots which is not permissible unless the lots were to be in some way irrevocably tied together. According to the pertinent DHRS rule, a septic tank may not be located within 5 feet of a property line.

   
   

3. Petitioners took no action to install the septic tank (although the second structure was constructed). In late July, 1986, Petitioner again applied for a permit to install the 1050 gallon tank in the same location and again the application was denied, this time in writing. The reason for denial given this time included the fact that the additional tank would far exceed the allowable maximum daily sewage flow for the parcel of land in question. Under applicable rules of DHRS, maximum daily residential sewage flow allowable is 2500 gallons per day per acre. The two lots taken together cover approximately 1/4 acre which would permit approximately 625 gallons of sewage flow per day. The existing tank on Lot 8 utilizes or exceeds the daily allowable sewage flow even without the installation of the subject tank which would double the flow.

   
   

4. When the second application was denied, Petitioner requested a variance from DHRS which, on October 22, 1986, was denied for the reasons stated in the paragraph next above.

   
   

5. The city of Clewiston's current sewage system is presently at full capacity and a moratorium on new hook-ups is and has, at all times pertinent hereto, been in effect. Consequently, Petitioners have not been able to hook up to the city system which is not expected to have available capacity until 1990 or 1991. In the interim, the new construction cannot be occupied since it cannot be connected to the existing septic tank, a new septic tank, or the city sewer system. When the new city system is available, hook-ups of both the new and the existing construction will be mandatory.

6. The current Environmental Health Director, Mr. McDougle, contends that under the current state of the law regarding the location of septic tanks. The county would consider the property owned by the Petitioners as two separate lots even though they were conveyed on the same warranty deed. Therefore, the lots would be 50 x 115 feet each and the proposed installation, which straddles the joint line between the lots, would violate the setback requirements. This defect could be remedied , however , by the construction of a building on the joint line, by a deed restriction preventing the separation of the lots, or by some other approved action which would insure the two lots would always be treated as one.

   
   

7. Petitioners have invested their life savings in the construction of the second building ( the one on Lot 7), which, while completed, perforce stands empty. Economically, the current situation is hurting them. There was no evidence to show, even if material, that installation of the septic tank in question would permit occupancy of the building, however.

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

   
   

8. Petitioners have requested a hearing on the propriety of DHRS's initial failure to take action on their original application in February, 1985, and the denial of the variance in 1986.

   
   

9. The evidence indicates that Respondent failed to take action on Petitioners' original application for a septic tank permit filed in February, 1985. The verbal denial does not constitute the denial envisioned in the language of either the rule or the enabling statute. In that case, when a formal denial is not issued within 90 days form the date of application, the permit is constructively issued and, under the terms of both the statute and the rule, is good for one year with provision for an extension of 90 days under certain circumstances. Petitioners, however, did not take advantage of their legal good fortune, and failed to install the septic tank when, arguably, they could have done so. Instead, they did nothing and their opportunity was lost.

   
   

10. The second application and the variance were denied on the basis that the new installation would exceed the flow limits imposed by both statute and rule. Petitioners contended this latter objection was not pertinent at the time the earlier application was viable. This is not true, however, since the legislative history of the provision clearly indicates the same limitation on domestic sewage flow was in existence in the 1983 statute which was applicable in February, 1985. Section 381.272(3), Florida Statutes, 1983. Consequently, the new tank would not have been permittable when applied for in 1985 even if the prohibition against crossing property lines had not been a problem.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioners' application for a permit to construct a 1050 gallon septic tank on Lots 7 & 8, Block 436, Clewiston, Florida be denied.

RECOMMENDED this 12th day of October, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1987.

COPIES FURNISHED:

Elvira Gonzalez 601 Saginaw Avenue

Clewiston, Florida 33440

Anthony N. DeLuccia, Jr., Esquire District Legal Counsel

Department of Health and Rehabilitative Services Post Office Box 06085

Fort Myers, Florida 33906

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Docket for Case No: 87-000178

Orders for Case No: 87-000178