STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN W. AND BETTY HOLIAN, )

)

Petitioners, )

)

vs. ) CASE NOS. 90-3109

) 90-3449

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on August 20, 1990, in Cross City, Dixie County, Florida.

APPEARANCES

FOR PETITIONERS: John W. Holian, pro se

466 South Lake Triplet Drive Casselberry, Florida

FOR RESPONDENT: Frances S. Childers, Esquire

Assistant District III Legal Counsel Department of Health and

Rehabilitative Services 1000 Northeast 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUES

The issues for consideration in these cases concern whether the Petitioners are entitled to an on-site sewage disposal system ("OSDS") permit, or the grant of a variance from the permitting requirements embodied in the statutes and rules cited herein, so as to authorize installation of an OSDS for property they own near the Suwanee River in Dixie County, Florida. See, Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the filing of Petitions for permits to install OSDS's on two lots which, the Petitioners own in Dixie County, Florida, in close proximity to the Suwanee River. After making application for the OSDS permits the Respondent reviewed them and ultimately determined that the permits should be denied solely because the property involved (Lots 22 and 37 of High Point Suwanee Riverfront Estates) was, as to the proposed septic tank installation sites, lower than the ten-year flood elevation for the river mile of the Suwanee River at which the two lots are located. Upon denying the permits, that fact was communicated to the Petitioners by letter from the Respondent. The

Respondent also advised the Petitioners that rather than pursue the variance board procedure with the Respondent, as authorized in Section 381.272(8), Florida Statutes, the Petitioners should contest the permit denials, bypass the variance procedure and go to formal hearing before the Division of Administrative Hearings. The cause was duly transmitted to the undersigned Hearing Officer and came on for hearing as noticed.

The hearing was convened and conducted on the above date. At the hearing, the Petitioners presented the testimony of Petitioner, John W. Holian. The Petitioners also offered two exhibits, which were admitted into evidence. The Respondent presented the testimony of James Fross and Richard Hunter. The Respondent also offered four exhibits, which were admitted into evidence. The parties elected to transcribe the subsequent to the hearing and were accorded an opportunity to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders thereafter. The Proposed Recommended Order from the Respondent was timely filed and has been treated in this Recommended Order and specific rulings made on its proposed findings of fact in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioners are the owners of certain real property located in Dixie County, Florida, in close proximity to the Suwanee River, more particularly described as Lots 22 and 37, High Point Suwanee Riverfront Estates, a subdivision platted and recorded in 1983. Lot 22 is approximately 150 feet by

   127 feet by 121 feet, and Lot 37 is approximately 100 feet by 175 feet by 176 feet in dimension. The lots were purchased on September 22, 1987 and December 10, 1987, respectively. The parties have stipulated that evidence and factual testimony adduced in this proceeding shall apply equally to the circumstance of both lots since they are in close proximity to each other and have similar elevations and other site characteristics. Accordingly, these Findings of Fact will be based upon that stipulated, combined evidence; and all Findings of Fact will apply to both lots, except as to elevation figures peculiar to each lot and as otherwise noted in these Findings of Fact.

   
   

2. The Petitioners purchased Lot 22 for $14,995.00 and Lot 37 for

   $12,500.00. They were purchased in September and December of 1987, respectively. The Petitioners purchased them with the intent of holding them for investment and building a retirement-type home on one of the lots. On March 22, 1990, the Petitioners applied for an OSDS permit for the lots in question.

   The new systems applied for would be for a frame-type "stilt home", which would contain three bedrooms and a heated and cooled area of 1,232 feet, which equates to a 350-450 gallons per day sewage flow under the standards contained in the Respondent's rules.

   
   

3. Hubert H. Raker, a certified, land surveyor of Cross City, Florida, performed a survey on the property, shown by Petitioners' Exhibit NO. 1 in evidence. That survey establishes a benchmark elevation for Lot 22 of 11.79 feet above mean sea level ("MSL"). That benchmark is actually six inches above the grade level elevation of the property at the benchmark location. Lot 37 was established to have a benchmark elevation of 12.25 feet above MSL, also six inches above the actual grade level of the lot at the benchmark elevation site. The site of the proposed installation of the OSDS has an elevation of 11.19 feet above MSL, as to Lot 22, and 11.75 feet above MSL, as to Lot 37. The ground water level, at the time the site evaluation was made by the Respondent's representative, was 60 inches below the surface of the grade for Lot 22 and 54 inches below the surface of the grade for Lot 37. The wet season water table

   for both lots was shown, by "mottling" existing in the soil beneath the surface of the lots, to be 54 inches below `:he surface of both lots. The soil type for both lots, starting with six inches below the surface, is of a "slight limited" soil characteristic and is fine sand down to approximately 48 inches and from 48 inches to 72 inches, consists of "loamy-sand". Such soils are well adapted to OSDS installation and operation.

   
   

4. The property was shown, by the Respondent's own Composite Exhibit NO. 2 in evidence, to not be subject to frequent flooding. The property is, however, as to both lots, beneath the ten-year flood elevation established by the Suwanee River Water Management District's calculations and admitted into evidence in this proceeding as a part of Respondent's Composite Exhibit NO. 2. The ten-year flood elevation for both lots was shown to be 15 feet above MSL. Thus the surface elevation of both lots is somewhat below the 15-foot, ten-year flood elevation. The bottom of the drain-field or absorption-bed trenches, if the systems were installed on the lots, would be a greater distance beneath the ten- year flood elevation. Thus, the property is located within the ten-year flood elevation of the Suwanee River and is also located within the regulatory floodway of the Suwanee River.

   
   

5. Other properties and lots in the immediate proximity of the Petitioners' two lots are equipped with OSDS's, including a number of "mounded systems", involving the placement of septic tanks and drain fields in elevated earthen mounds in order to elevate them above the ten-year flood elevation. Petitioner, John W. Holian, testified in a general way that such a system might be feasible and advisable in his situation, as well as the possibility of installing an aerobic septic tank treatment and disposal system, involving the injection of air into the septic tanks so that aerobic, (as opposed to anaerobic), bacteria could perform the sewage treatment function, which typically perform the function better than does a conventional anaerobic system. Petitioner Holian, did not offer any detailed testimony or evidence which would explain and establish how such a system could work without endangering the health of the Petitioners or members of the general public, if placed on the lots in question below the ten-year flood elevation, nor if or how such a system would protect against degradation of the ground or surface waters involved in the proximity" of the sites. If the system were mounded above the ten-year flood elevation, the Petitioners did not establish, through proper engineering testimony and other evidence generated by a registered engineer, that the use of the fill for the earthen mound for such a system would not raise the level of the "base flood." In summary, although the Petitioners suggested such a mounded system or an aerobic system or such a system possibly used in combination, the Petitioners did not go beyond suggesting an alternative and did not offer evidence which could establish that such an alternative would be a reasonable operationally feasible one and would adequately protect the ground or surface waters and the members of the general public from health hazards associated with sewage effluent. See, Rule 10D-6.47(6), Florida Administrative Code.

   
   

6. On May 1, 1990, the Respondent, by letter, advised the Petitioners that they should pursue a formal administrative proceeding upon the initial denial of their OSDS permit application and advised them that an application for a variance from the requirements of Rule 10D-6.47(6), Florida Administrative Code, regarding the ten-year flood elevation problem at issue, should not be pursued but rather, the formal hearing process before the Division of Administrative Hearings should be employed by the Petitioners. The Respondent asserts, that the Petitioners were not accorded the opportunity to avail themselves of the variance procedure because of the Respondent's interpretation of the Governor's Executive Order 90-14, which it opines precludes it from granting any variances

   or permits for OSDS within the ten-year flood elevation. The Governor's Executive Order, which incorporated the "Suwanee River Task Force" recommendation to preclude such systems beneath the ten year flood elevation was entered on January 17, 1990. The Respondent has, in effect, interpreted that Executive Order as precluding it from exercising its discretion to entertain and grant or deny variance applications. The Petitioners apparently took-that advice because no variance application was filed.

   
   

7. It is noted, somewhat parenthetically, however, that in terms of the requirements for the establishment of a right to a variance, the Petitioners have not shown that no reasonable alternatives exist to a standard subterranean septic tank and drain field OSDS, (such as those alternatives referenced in the paragraph next above, which efficacy was, nonetheless, not established by the Petitioners). Neither did the Petitioners establish, in terms of the variance requirements in the authority referenced below, that the installation of an OSDS would not have an adverse effect on the public's health or the quality of the ground or surface waters involved at the sites. Because these two necessary elements of proof necessary to establish the right to a variance, through hardship, were not proven by the Petitioners, the elements of proof necessary to establish the right to a hardship variance have not been made out by the Petitioners and one could not be granted under the proof of record in this proceeding, even had the Petitioners made formal application for such a variance. That is not to say, however, that with proper preparation and presentation of evidence, entitlement to a variance could not be established in the future.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

   
   

9. The Petitioner seeks to obtain an OSDS permit for property located in Dixie County, Florida. The Petitioner seeks to change the status quo and, therefore, has the burden to establish the proof necessary to demonstrate the entitlement to the OSDS permit. See, Florida Department of Transportation v.

   J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. The Petitioner did not file an application for a variance because of representations made by, the Respondent's personnel that such an application would be futile in light of the Respondent's interpretation of the applicability of the Governor's Executive Order, referenced herein. No substantial proof supportive of the existence of available alternative sewage disposal systems, which might be environmentally effective in treating the sewage effluent contemplated for the property in question, was offered which would counterval the effect of the relevant ten-year flood elevation. Thus, compliance with the permitting statutes and rules, themselves, through demonstration of effective alternative sewage disposal and treatment systems was not established.

    Likewise, no proof was offered supportive of the grant of a variance from the permitting statutes and rules in terms of the three variance criteria enunciated in Section 381.272(8), Florida Statutes, and the related rule. That is, no proof was offered that no reasonable alternative to an underground septic tank drain-field-type disposal system was offered by the Petitioner, nor was it established that the effluent from the system proposed to be installed would not adversely affect the health of the Petitioner or the general public nor that it

    would not adversely affect the quality of the surface or ground waters involved at the site. Thus, had a variance been applied for, it could not be granted based upon the quality of proof offered by the Petitioner.

    
    

11. The basic requirements for an OSDS permit are contained in Section 381.272, Florida Statutes, which provides as follows:

    
    

    "(1). . . where a publicly owned or investor owned sewage system is not available, the Department of Health and Rehabilitative Services may issue permits for construction or installation of on-site sewage disposal systems under conditions as described in this section.

    1. Subdivisions and lots in which each lot has a minimum of at least one-half acre and either a minimum dimension of 100 feet or a main of at least 100 feet of the side bordering the street and the distance formed by a line parallel to the side bordering the street drawn between the two most distant points of the remainder of the lot may be developed with a private potable well and on- site sewage disposal system, provided the projected domestic sewage flow does not exceed an average of 1500 gallons per acre per day, and provided satisfactory drinking water can be obtained and all distance and set back, soil conditions, cater table elevation, and other requirements of this section and rules promulgated hereunder can be met.

    2. Subdivisions and lots with public water system may utilize on-site sewage disposal systems, provided there are no more than four lots per acre, provided the projected daily domestic sewage flow does not exceed an average of 2500 gallons per acre per day, and provided all distance and set back, soil conditions, water table elevation and other related requirements which arc generally applicable to the use of on-site sewage disposal systems are met."

       
       

12. The specific requirements for on-site sewage disposal systems for lots platted before 1972 set forth in Section 381.272, Florida Statutes, does not pertain' to the property because it was platted in 1983.

    
    

13. Rule 10D-6.043(1), Florida Administrative Code, provides that no on- site sewage disposal system shall be installed without a permit obtained from the Department.

    
    

14. Rule 10D-6.044(3), Florida Administrative Code, states that suitability of the property for use of an on-site sewage disposal system shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil and water table conditions, and soil drainage and site typography.

15. Rule 10D-6.046, Florida Administrative Code describes the requirement for location and installation of an on-site sewage disposal system and Rule 10D- 6.046(7)(a), Florida Administrative Code, provides that each lot upon which an OSDS his installed shall have a minimum area of one-half acre. The lots meet the relevant size requirement.

16. Rule 6D-6.047(6), Florida Administrative Code states that: "(6) The final lot elevation of the site of

    the proposed system installation and the

    additional unobstructed land referred to in Rule l0D-6.046(4) is not subject to frequent flooding. In addition, the bottom surface of the drain field trench or absorption bed shall not be subject to flooding based on ten year flood elevations. U.S. Department of Agriculture Soil Conservation Service soil maps, state of Florida Water Management District's data, and federal emergency management agency flood insurance maps are resources that can be used to identify the flood prone areas. Mound systems, sand filters or other systems which require the placement of fill material or construction of above grade structures, will not be authorized within a regulatory floodway unless certified by an engineer registered within the state of Florida that the placement of such fill or structures will not increase the water surface elevation of the base flood. The certification of such systems shall be substantiated by data and method of calculation provided by the engineer and shall be subject to review and approval by the County Public Health Unit."

    
    

17. It should be noted that this particular property is within the regulatory floodway. Therefore, an engineering certification, calculation and data would be required preparatory to authorization and permitting of a mounded system, consisting of fill material or construction above the grade of the property at the installation site. No such engineering proof has been adduced in this proceeding, however.

    
    

18. When pursuing a permit application, the applicant must demonstrate entitlement to the OSDS permit based upon demonstrated compliance with the criteria contained in the statutes and rules cited herein. This application was denied specifically because the site of the proposed drain-field system is within the ten-year flood elevation parameter for the Suwanee River. The Petitioner failed to prove that the property is located above the ten-year flood elevation so as to entitle Petitioner to an OSDS permit, in accordance with the rule cited last above. That was the sole basis for the Respondent's denial of the permit application, as shown by the denial letter and testimony of record. In fact, the evidence affirmatively establishes that the aforesaid property and septic tank and drain field site lies below the ten-year flood elevation. Parenthetically, it should be noted that it was established that the appropriate types of soil extended 42 inches or more below the bottom surface of the proposed drain-field trench or absorption bed, in accordance with Rule 10D-

    6.047(1) Florida Administrative Code, and that the water table elevation at the wettest season of the year is at least 54 inches below the bottom surface of the proposed drain-field trench or absorption bed. However, the installation site not being in compliance with the ten-year flood elevation standard in paragraph

    6 of Rule 10D- 6.047, Florida Administrative Code, the sole basis for denial of the permit expressed in the denial letter initiating this proceeding, is a sufficient basis for denial. As alluded to above, the applicant's proof does not support entitlement to a variance from the above-cited permitting statutes and rules. The applicant, for instance, did not demonstrate that no reasonable alternative exists for the treatment of the sewage in question and did not demonstrate that the discharge from the individual sewage disposal system proposed would not adversely affect the health of the applicant, members of the public, or significantly degrade the ground or surface waters involved, nor were the lots in question platted prior to 1972, as that relates to special considerations which can be given under Section 381.272(8), Florida Statutes, concerning variances. In fairness to the Petitioner, it should be pointed out that the Petitioner did not come to hearing seeking to prove entitlement to a variance apparently because the Respondent had instructed the Petitioner as to the futility of applying for a variance and seeking to prosecute a variance proceeding through its informal variance board process. This was because of the Respondent's belief, regarding the applicability of the Governor's Executive Order No. 90-14, as precluding any consideration of variance requests.

    
    

19. In that connection, on January 17, 1990, Governor Martinez issued Executive Order NO. 90-14 regarding the Suwanee River basin. In that Order, the Governor directed the Respondent to implement the Suwanee River Task Force recommendation that OSDS's, private wells, and central waste water facilities should be prohibited within the ten-year flood plain and should otherwise be in compliance with applicable rules and regulations concerning such systems and their installation. The Respondent has taken the position, therefore, that the report, as incorporated in the Governor's Executive Order, indicates that OSDS's are sources of pollution in the Suwanee River and that regulations prohibiting the installation of' them within the ten- year flood elevation are, ipso facto, designed to protect public health and prevent significant degradation of ground or surface waters. In effect, the Respondent conclusively presumes that if such systems are installed within the ten-year flood elevation, then they cause degradation or adverse effect on public health and ground or surface waters.

    The Respondent, thus, has conclusively presumed that no such variance applications can be granted, nor can permits be granted based upon alternative systems and approaches to treatment and disposal of sewage effluent on-site, if the installation site in question is at or beneath the ten-year flood elevation.

    
    

20. Section 381.272(8), Florida Statues, authorizes, along with the related rules enacted pursuant to it, that the Respondent may grant variances from the statutory and rule- embodied permitting requirements for OSDS's. That statutory mandate, under which the related rules were enacted, constitutes authority emanating from the Florida Legislature directing the Respondent to allow a procedure whereby variances from strict application of the permitting requirements can be granted, in proper cases, so as to authorize them in cases of unavoidable hardship, balanced with the small likelihood of environmental damage, as enunciated in the statutory and rule provisions cited above. Section 381.272(8), Florida Statutes, and the rules enacted under it, clothe the Respondent with discretion in this area and mandate that such a variance procedure be inaugurated and followed for the benefit of the members of the public who seek OSDS permits, have them denied, and, therefore, need an opportunity to demonstrate a hardship entitlement to a variance from the permitting rules, if the above-cited three requirements for proof of entitlement

    to a variance can be met. This is not an unbridled discretion, and the consideration of variance applications must conform to the three requirements set forth in the statutory section cited last above and repeated in Rule 10D- 6.045(3), Florida Administrative Code. This statutory and regulatory scheme sets up a discreet variance procedure which affords the affected public the opportunity to show the Respondent a hardship basis for avoiding the stricture of a permit denial for noncompliance with the statute and rules pertaining to permitting, itself. If the Respondent persisted in its present interpretation of the effect of the Governor's Executive Order, it would, in effect, create a conclusive presumption against the grant of any variances for any property and OSDS installation sites owned by any applicant which happened to lie beneath the ten-year flood elevation for the Suwanee River. The Governor's Executive Order, however, cannot legally obviate the mandate of the Legislature that the Respondent must exercise discretionary authority in this area, within the bounds of the variance criteria enacted by the Legislature in Section 381.272(8), Florida Statutes, and in the above-cited rule. If the Executive Order is so interpreted by Final Order in this and other similar proceedings, it would constitute a violation of the separation of powers doctrine embodied in the Florida Constitution and thus would be an impermissible usurpation of the authority of the legislative branch of government by the executive.

    
    

21. Rather, at most, the Governor's Executive Order can only serve as guidance to the Respondent in considering variance applications under the legislatively-mandated variance criteria referenced above, as, for instance, a policy basis for determining the materiality of deviations from the technical standards for such installations in the permitting rules concerning the overall issue in variance proceedings regarding whether the discharge will adversely affect health or significantly degrade ground or surface waters. The Governor's Executive Order cannot, however, appropriately be used as raising a conclusive presumption, having universal application to all such proceedings, dictating that all variances be denied simply because the property or sites to which they relate lie below the ten-year flood elevation of the Suwanee River. All opportunity to show lack of adverse health effects, or lack of degradation of ground or surface waters or that no reasonable alternatives exist for the treatment of the sewage effluent in question, as that relates to demonstration of sufficient hardship justifying the grant of a variance, cannot, thus, be automatically and arbitrarily foreclosed. Since the variance statute in question and the rules enacted pursuant to it constitute a `legislative mandate that that variance procedure be inaugurated and followed by the Respondent in situations where permits are initially denied by the Respondent, that scheme must be employed and followed until repealed or amended.

    
    

22. Although the OSDS permit entitlement has not been proven by the Petitioner, because of the ten-year flood plain consideration discussed herein, that does not mean that the Petitioner should not be accorded the opportunity to establish entitlement to a variance. Likewise, if the Petitioner, by later application, can demonstrate changed factual circumstances as, for instance, that alternative treatment and disposal systems or methods are available and feasible (which was not done in this case), then a later permit application itself, encompassing demonstration of such changed circumstances, could be entertained.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered denying the Petitioner's application for an OSDS permit.

DONE AND ENTERED this 19th day of December, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 20th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3109 AND 90-3445

The Petitioners filed no proposed findings of fact. Respondent's Proposed Findings of Fact 1-9. Accepted.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris, Esquire General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John W. Holian

466 South Lake Triplet Drive Casselberry, Florida

Frances S. Childers, Esquire Assistant District III Legal

Counsel Department of HRS

1000 N.E. 16th Avenue Gainesville, Florida 32609

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at 1east 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You shou1d contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to thin Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

JOHN W. and BETTY HOLIAN,

Petitioners, CASE NO. 90-3109 90-3449

vs.

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.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following:

In Executive Order 90-14 the Governor concluded that the greatest threat to the Suwannee River is potential development along the river and that only those land uses compatible with maintaining the natural resource values of the Suwannee River basin should be allowed.

The problems with use of septic tanks in the Suwannee floodplain were addressed in the report of the task force adopted in Executive Order 90-14. The extent of the problem can be seen from the following exerpts from page 14 and 19 of the report:

.... there are an estimated

20,000 - 25,000 small tract platted lots in the Suwannee basin, most of which are currently undeveloped....

Septic tanks along the Suwannee River have been implicated in contributing to the high levels of fecal coliform bacteria that have resulted in the closing and restricting of shellfishing in a large portion of Suwannee Sound....

Executive Order 90-14 (adopting recommendation 36 of the Task Force Report) prohibits septic tanks (on-site sewage disposal systems) within the 10 year floodplain of the Suwannee River. The Hearing Officer expressed concern about the constitutionality of such a prohibition and suggested that Executive Order 90-14 be considered as advisory only. The Courts have held that administrative agencies lack the authority to adjudicate constitutional issues. Key Haven vs. Board of Trustees, 427 So2d 153 (Fla. 1982), State Department of Transportation vs. Hendry, 500 So2d 218, 222 (Fla. 1st- DCA 1986), Carrollwood State Bank vs. Lewis, 362 So2d 110, 113 - 114 (Fla. 1st DCA 1978). Thus, I conclude that the department should continue to enforce the ban on on-site sewage disposal systems within the 10 year floodplain of the Suwannee River.

Based upon the foregoing, it is

ADJUDGED, that petitioner's application seeking a permit for an on-site sewage disposal system be DENIED.

DONE and ORDERED this 3rd day of February, 1991, in Tallahassee, Florida.

Robert B. Williams Acting Secretary Department of Health and Rehabilitative Services

by

for Deputy Secretary for Health

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.

Copies furnished to:

John W. Holian, pro se

466 South Lake Triplet Drive Casselberry, FL

Frances S. Childers, Esquire District 3 Legal Office

1000 N.E. 16th Avenue Gainesville, Florida 32609

P. Michael Ruff Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550 Eanix Poole (HSEH)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 8th day of February, 1991.

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

Docket for Case No: 90-003109

Orders for Case No: 90-003109