STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEARNEY DEVELOPMENT CO., INC., ) and CORRUGATED INDUSTRIES, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 89-0263

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This case came to be considered by Donald D. Conn, Hearing Officer, Division of Administrative Hearings, on May 5, 1989, upon the filing of the parties' Stipulation of Facts and Memoranda of Law. The parties were represented as follows:

For Petitioners: Charles G. Stephens, Esquire

Bayport Plaza - Suite 460

6200 Courtney Campbell Causeway Tampa, Florida 33607

For Respondent: Raymond Deckert, Esquire

W. T. Edwards Facility 4000 West Buffalo

5th Floor, Room 500 Tampa, Florida 33614

The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) should issue a permit for a septic tank and drainfield to Kearney Development Co., Inc., (Kearney) and Corrugated Industries, Inc. (Corrugated). The case was submitted for the preparation of a recommended order upon stipulated facts and memoranda of law filed by the parties.

FINDINGS OF FACT

1. Kearney is engaged in the development of real property in and around Hillsborough County, Florida, and is located in Tampa, Florida. Corrugated is a Louisiana Corporation which maintains a local headquarters in Tampa, Florida, and is presently seeking a business outlet in Hillsborough County for the assembly and distribution of metal buildings.

   
   

2. At all times material hereto, Kearney and Corrugated have been parties to a real estate transaction concerning certain real property located at 1920

   U.S. Highway 301 in Tampa, Hillsborough County, Florida. The subject property consists of .82 acres of undeveloped land which is located in an area of rapid

   commercial and industrial growth. Under the Hillsborough County Zoning Code, the subject property is designated M-1, which authorizes commercial and industrial uses.

   
   

3. Corrugated is the purchaser of the subject property, and proposes to establish an assembly and distribution center for pre-painted sheet metal buildings. Corrugated does not propose to engage in any activity which will generate industrial wastewaters of any kind, and in particular, will not generate wastes or wastewaters of a "hazardous" or "toxic" nature.

   
   

4. No centralized public wastewater service has been available to this property, and septic tanks with drainfields are utilized by both adjacent properties for their domestic and other wastewater needs. Kearney and Corrugated have determined that the property in question is suitable for the intended uses in all other respects, including water, electricity, and transportation.

   
   

5. In September, 1988, Kearney and corrugated sought approval from Respondent of a permit to install an onsite sewage disposal system (septic tank and drainfield) for the sole purpcse of providing toilet services to employees of the company. The site plan and preliminary construction drawings for the on- site system were reviewed by the Department of Environmental Regulation (DER) to determine whether the project posed unusual wastewater problems or relied upon inadequately designed facilities. The DER had no objection to the installation of the septic tank and drainfield to serve the proposed system because of the non-hazardous character of the business, and the absence of floor drains in the proposed work areas.

   
   

6. The Hillsborough County Health Department, however, gave immediate verbal denial of a septic tank permit based solely upon the industrial zoning of the property, and set forth its denial, in writing, on October 14, 1988.

   
   

7. Following the County Health Departnent's denial, Kearney and Corrugated, based upon consultation with Respondent's officials in Tallahassee, assembled additional information to provide further assurance that the site would not generate industrial or hazardous wastes which could be disposed of via the septic tank. They provided detailed descriptions of each process to be performed by Corrugated, in substantiation of its claim that no wastewaters would be generated at the site. They also obtained the agreement of the Hillsborough County Building Department to subject any future building permit applications at the site to particular wastewater scrutiny, in addition to formal deed restrictions which they proposed for the subject property. Notwithstanding these additional representations, the Environmental Health Director of the Hillsborough County Health Department continued to reject the application on the sole ground that the property was zoned for industrial uses.

   
   

8. On October 14, 1988, Petitioners submitted an application for a variance to the Hillsborough County Health Department and the Respondent, accompanied by supporting material setting forth the regulatory history referred to above, as well as the written representations and assurances, including proposed deed restrictions, which they had previously tendered to the County Environmental Health Director. They appeared before the Variance Advisory Review Board on November 3, 1988, to substantiate the specific measures which they proposed in order to ensure that no toxic or hazardous substances would be introduced into the septic tank system. These proposals were received by the Advisory Board without objection, and members observed that Petitioners had done everything they could do to provide the comfort margin which the agency sought.

   However, denial of the variance was recommended based upon the failure of Hi1sborough County to adopt a local ordinance providing for future inspections or controls by local officials to prevent future toxic or hazardous wastes from being disposed into the on- site sewage disposal system. Without such a local ordinance, the Advisory Board members expressed the view that it did not matter what the applicant presented to the Board.

   
   

9. On December 2, 1988, the Respondent formally informed the Petitioners, in writing, that their application for a variance had been disapproved. This denial had the effect of formally denying Petitioners' permit application. Thereupon, Petitioners timely sought review of this decision by filing a petition for formal administrative hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. The Respondent has the statutory responsibility to consider applications for the construction or installation of onsite sewage disposal systems, and to issue permits for such systems when all statutory and rule criteria have been met by the applicant. Section 381.272(1), Florida Statutes. In cases of hardship, the Respondent may also grant variances which are less restrictive than criteria which would otherwise apply when no reasonable alternative exists for the treatment of sewage, and the system discharge will not adversely affect the public health or degrade ground or surface waters. A Variance Review Board is established for the purpose of making recommendations to the Respondent on such variance applications. Section 381.272(8), Florida Statutes; Rule 10D-6.045, Florida Administrative Code.

    
    

12. Section 381.272(9), Florida Statutes, provides:

    
    

    No permit may be issued for an onsite sewage disposal system in any area zoned for industrial or manufacturing use, or its equivalent, *where a possible use of the system might be* to dispose of toxic or hazardous chemicals. (e.s.

    between *).

    
    

13. The Respondent concedes in its Legal Memorandum that septic tanks are permitted in areas zoned for industrial and manufacturing uses for domestic type sewage, and that the Petitioners' use of the land and building at issue in this case will generate only domestic type waste. However, Respondent contends that where there is any possibility of toxic or hazardous chemicals being disposed of in a septic tank (onsite sewage disposal system), a permit should not be issued. It is argued that once a permit is issued, no follow-up controls of the subject building or land are possible. Respondent expresses the view that Petitioners may sell out to a new owner and business which may generate toxic or hazardous chemicals.

    
    

14. The only suggested way in which a permit applicant such as Petitioners may receive approval, according to the position taken by the Respondent, is for that applicant to apply to the local zoning board, and have the subject property zoned for Petitioners' specific business use. By using site specific zoning, only Petitioners' business could be carried on at the site, and any change in business use would require a zoning change, which would thereby allow the

    Respondent and the County Health Department an opportunity to review any proposed change, and prevent the possibility of toxic or hazardous chemicals from being disposed of through the septic tank and drainfield.

    
    

15. While the applicant for a permit has the ultimate burden of proof with regard to statutory and rule criteria which must be met for the issuance of a permit, the stipulation of the parties in this case establishes that the Petitioners have met all of the applicable requirements, with the exception of the Respondent's concerns about Section 381.272(9). Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Respondent does not have a rule which implements or interprets this statutory provision, nor has any nonrule policy been explicated in this proceeding. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Therefore, in order to ascertain if the Respondent's interpretation is reasonable, we must look to the plain meaning the terms of this statute.

    
    

16. The plain meaning of the terms used in Section 381.272(9) must be ascertained by considering, in pari materia, all relevant provisions of Chapter

381. Section 381.291, Florida Statutes, specifically authorizes the Respondent to issue corrective orders for individual sewage disposal systems when it finds, through investigation that such a system constitutes a nuisance or menace to the public health. Therefore, if a future owner of the subject property were to change its use and dispose of toxic or hazardous materials through the septic tank and drainfield, the Respondent would have the authority to order the correction of such violations. The Respondent's concern that by issuing this permit, they forever loose any right to review the use to which this system is put, ignores the authority found in Section 381.291. Additionally, Rule 10D- 6.041(6) specifies that a permit for an onsite sewage disposal system remains valid only for the use permitted according to the terms of the permit, and if such use changes, the system must be upgraded to accommodate such change. This allows additional review by the Respondent, and obviates the major concern it expresses in support of its restrictive interpretation of Section 381.272(9).

1. Respondent's interpretation makes it virtually impossible for any property zoned for industrial or manufacturing uses to obtain a septic tank and drainfield permit, even if that system is shown to be solely for the domestic wastewater resulting from persons using such property. This interpretation is directly contrary to Respondent's own Rule 10D-6.041(8)(c) which recognizes that permits can be issued for such property, as long as the standards and rules of the DER are met. The parties have stipluated that DER reviewed this application, and had no objection.

   
   

2. As set forth above, the Respondent's denial of the Petitioners' application is based upon its concern that the use of this property could change in the future if the property were sold, or control was otherwise transferred to some other party that then might possibly utilize the septic tank and drainfield to dispose of toxic or hazardous wastewater. The Respondent has no concern about the Petitioners engaging in such harmful activities, and the stipulations of fact reflect that the Petitioners have taken all reasonable steps to assure the Respondent that their activities would not result in such hazards. The Respondent's concerns are purely speculative, and there is nothing in the record of this proceeding to support such speculation. As such, Respondent's proposed denial of Petitioner's application is arbitrary and capricious, and ignores the

specific facts to which the parties have stipulated, as well as the plain meaning of Section 381.272(9), when read in pari materia with other relevant statutes and rules.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Respondent issue a permit for an onsite sewage disposal system to the Petitioners.

DONE AND ENTERED this 18th day of May, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1989.

COPIES FURNISHED:

Charles G. Stephens, Esquire Bayport Plaza - Suite 460

6200 Courtney Campbell Causeway Tampa, Florida 33607

Raymond Deckert, Esguire

W. T. Edwards Facility 4000 W. Buffalo

5th Floor, Room 500 Tampa, Florida 33614

John Miller, General Counsel 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Gregory Coler, Secretary 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power, Clerk 1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

KEARNY DEVELOPMENT CO., INC., and CORRUGATED INDUSTRIES, INC.,

Petitioner,

vs. CASE NO.: 89-0263

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The Department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order. Regarding finding of fact number five

(5) it is noted that the Department of Environmental Regulation determined that it had no jurisdiction because petitioner stated that no toxic, hazardous, or industrial wastes would be generated on the site and estimated daily domestic sewage would be less than 5,000 gallons per day.

RULING ON EXCEPTIONS FILED

BY DEPARTMENT AND CONCLUSIONS OF LAW

In a memorandum of May 9, 1988, the department provided criteria for the evaluation of applications for onsite sewage disposal systems (OSDS) in industrial and manufacturing (I/M) zoned areas. The facts stipulated to in the present case fall within category 3 of the memorandum.

3. Known occupancy; permanency of the business is unknown; no known toxic Or hazardous waste is associated with the business; and no local CPHU controls over occupancy. Variance should be required.

I conclude that the variance should be granted in this case conditioned by the representations of petitioner as set forth in finding of fact number seven (7).

Based upon the foregoing, it is

ADJUDGED, that petitioner's application for a variance be approved. The representations of petitioner as set forth in finding of fact number seven (7) are hereby imposed as conditions of the variance. Petitioner's written consent to said conditions shall be provided prior to issuance of the permit.

DONE and ORDERED this 7th day of July, 1989, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Operations

COPIES FURNISHED:

Raymond Deckert, Esquire District 6 Legal Office

W. T. Edwards Facility 4000 West Buffalo Avenue 5th Floor, Room 500 Tampa, Florida 33614

Charles G. Stephens, Esquire Bayport Plaza - Suite 460

6200 Courtney Campbell Causeway Tampa, Florida 33607

Donald D. Conn Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 Eanix Poole (PDHDH)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 12th day of July, 1989.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 89-000263

Orders for Case No: 89-000263