STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES F. SEDER, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1626

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on June 20, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Lee B. Sayler, Esquire

50 South U.S. Highway One, Suite 303 Jupiter, Florida 33477

For Respondent: Peggy G. Miller, Esquire

Department of Health and Rehabilitative Services

111 Georgia Avenue, 3rd Floor West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

Whether the Petitioner's request for variance should be granted.

PRELIMINARY STATEMENT

On November 15, 1988, Petitioner applied for a variance from the denial of his septic tank permit. The variance was considered on January 5, 1989, and subsequently denied. On February 23, 1989, Petitioner's counsel requested a formal hearing on the matter, and on March 28, 1989, Respondent requested that the Division of Administrative Hearings appoint a hearing officer to conduct a formal administrative hearing pursuant to Chapter 120, Florida Statutes.

At the hearing, Petitioner called three witnesses and offered seven exhibits which were admitted into evidence. Respondent testified on his own behalf, offered the testimony of one witness and presented two exhibits which were also admitted into evidence.

A transcript of the hearing was not ordered, and the parties were granted leave until June 30, 1989, to file proposed findings of fact. Neither party elected to file proposed findings of fact.

FINDINGS OF FACT

1. Petitioner owns an undeveloped parcel of land in Palm Beach, County which is zoned industrial and on which he intends to construct a storage building to house and repair farm equipment. To provide sewage treatment at the site, Petitioner had designed an on site sewage disposal system and applied for a septic tank permit which was denied as was his variance request.

   
   

2. The closest public sewage treatment plant to the property is over five miles from the site, and the closest private treatment is approximately three miles from the subject site. Petitioner has no easement to either site if capacity were available and if he chose to connect. However, the proof did not show capacity at either site.

   
   

3. Although Petitioner does not intend to pollute the groundwater, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of farm equipment could result in the disposition of prohibited hazardous waste into the groundwater.

   
   

4. Alternative methods of waste disposal are available which would properly dispose of the waste and, yet, protect the groundwater from contamination by hazardous waste. Such systems include certain aerobic treatment units and package plants. The monetary costs of these systems is greater than the septic tank proposal; however, the proof did not demonstrate that the cost was prohibitive or a hardship.

   
   

5. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner, the proof failed to demonstrate lack of reasonable alternatives of waste disposal and the absence of adverse effect of the operation to the groundwater. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions although a survey of the property dated September 3, 1985, indicates that the subject parcel was not platted. Accordingly, the denial of the variance was proper.

   
   

   CONCLUSIONS OF LAW

   
   

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

7. Section 381.272(8)(a), Florida Statutes provides that: The Department of Health and

   Rehabilitative Services may grant

   variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the Department of Health and Rehabilitative Services is satisfied that:

   1. The hardship was not caused intentionally by the action of the applicant;

   2. No reasonable alternative exists for the treatment of the sewage; and

   3. The discharge from the individual

      sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters.

      Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972.

      
      

8. Section (9) of section 381.272, Florida Statutes, specifically states that "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. "

   
   

9. Rule 10D-6.045 (3), Florida Administrative Code provides, In part, that

   
   

   .... A 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 hardship was not caused intentionally by the action of the applicant, where no reasonable alternative exists for the treatment of sewage and where discharge from the onsite sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade ground or surface waters. Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972.

   
   

10. The burden of presenting the pertinent facts supportive of the request for variance rests on Petitioner. Rule 10D-6.045(2), Florida Administrative Code. Here, Petitioner failed to sustain the burden.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July 1989.

COPIES FURNISHED:

Lee B. Sayler, Esquire

50 South U.S. Highway One Suite 303

Jupiter, Florida 33477

Peggy G. Miller, Esquire Department of Health and

Rehabilitative Services

111 Georgia Avenue Third Floor

West Palm Beach, Florida 33401

Sam Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 89-001626

Orders for Case No: 89-001626