STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GRADY PARKER LANDSCAPING, ) AND PAVING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 89-1646

)

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: Hattie Parker, pro se

160 Toneypenna Drive Jupiter, Florida 33468

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 October 25, 1988, Petitioner applied for a variance from the denial of its septic tank permit. On December 14, 1988, Respondent notified Petitioner that its request had been denied. The variance was considered on January 5, 1989, and subsequently denied. On March 8, 1989, Petitioner requested a formal hearing on the matter, and on March 23, 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, Mrs. Hattie Parker, as owner and manager of Petitioner, represented Petitioner and testified on its behalf. Respondent called one witness and offered five exhibits which were 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 timely proposed findings of fact.

FINDINGS OF FACT

1. Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request.

   
   

2. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site.

   
   

3. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site

   
   

4. However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste.

   
   

5. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. 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:

Hattie Parker

160 Toneypenna Drive Jupiter, Florida 33468

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: 89-001646

Orders for Case No: 89-001646