STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY M. KING, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3111

)

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 PETITIONER: Marilou Clark

Suwannee Plantation Realty Rt. 3, Box 73

Old Town, Florida 32680

FOR RESPONDENT: Frances S. Childers, Esquire

Assistant District III Legal Counsel

Department of HRS

1000 Northeast 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUES

The issue for consideration in this proceeding concerns whether the Petitioner is entitled to a variance for installation of an on-site sewage disposal system ("OSDS") for property located near the Suwannee River in Dixie County, Florida, in accordance with the provisions of Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the application by the Petitioner for a variance from the OSDS permit requirements embodied in the above-cited statute and rules for property which the Petitioner owns in Dixie County, Florida, in the vicinity of the Suwannee River. That variance application was denied by letter from the Respondent to the Petitioner on January 9, 1990 on the basis that granting a variance to relieve excessive hardship for the Petitioner was not justified because the Petitioner had not clearly demonstrated that the public health would not be impaired and that pollution of ground or surface waters would not result if the variance were granted and the OSDS installed. The variance request was

not considered by the Respondent to be a minor deviation from the minimum permitting standards embodied in the statutory section and rules referenced herein. Upon receipt of the denial, the Petitioner then timely availed himself of the right to a Chapter 120.57(1), Florida Statutes, hearing; and the cause was duly transmitted to the undersigned Hearing Officer.

The cause came on for hearing as noticed on the above-mentioned date. The Petitioner presented the testimony of Marilou Clark and presented four exhibits, which were admitted into evidence. The Respondent presented the testimony of Kevin Michael Sherman, who performed the Respondent's evaluation of the site in question. The Respondent's Exhibit No. 1 was admitted into evidence. At the conclusion of the proceeding, a transcript was ordered; and the parties were accorded the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended orders. The Respondent timely filed a Proposed Recommended Order, and the Petitioner merely filed a letter dated August 30, 1990 delineating the Petitioner's "recommendations". To the extent that that letter proposes findings of fact, it is determined that all proposed findings of fact in that letter are accepted as true; however, some or all of them are not necessarily material to adjudication of the legal and factual issues presented in this cause.

FINDINGS OF FACT

1. The Petitioner is the owner of certain real property located in Dixie County, Florida, more particularly described as Lot 4, Wonderland Subdivision. The property is approximately 60 by 150 feet in size and was purchased in 1982 for a price of $9,000.00. It is presently appraised at $11,000.00; however, if an OSDS could be permitted and installed, the property would appraise for approximately $22,000.00. The lot was platted in 1957.

   
   

2. On October 19, 1989, the Petitioner made an application for a variance from the OSDS permit requirements for the property. The application form indicated, and the Petitioner intends, that this would be a new system for a single-family residence. The residence would contain two bedrooms and would produce approximately 250 gallons per day of sewage flow. The Petitioner desires to construct a residence on the property to have a pleasant place to live and is suffering a hardship because of the investment which he has made in the property, which is of no use to him if he cannot obtain the subject permit or variance and install the OSDS so that he can construct his residence. Alternatively, he is unable to sell the property readily without the ability to obtain an OSDS permit or variance for the property. At the behest of the Respondent in the permit application or variance application process, the Petitioner obtained a survey of the property by a registered land surveyor (see Petitioner's Exhibit No. 2 in evidence). That survey resulted in a benchmark elevation being established of 12 feet above mean sea level ("MSL"). The site of the proposed OSDS installation is 11.71 feet above MSL. The ten-year flood plain elevation for this property is 16 feet above MSL, as verified by records of the Suwannee River Water Management District in evidence without objection. The property is also located within the regulatory floodway of the Suwannee River.

   
   

3. Although the Petitioner acknowledged in a general way that he would be amenable to consideration of various alternative types of systems involving piping of sewage effluent to an appropriate upland disposal and treatment area, the use of chemical toilets or other appropriate non-discharge types of treatment and disposal systems, no concrete evidence was adduced from the Petitioner to establish that such are or are not reasonable alternatives to the

   conventional subterranean septic tank and drainfield type of disposal system with which the variance application is concerned. Consequently, the Petitioner's proof does not establish that no reasonable alternatives exist in order to secure the grant of a variance nor did the Petitioner's proof establish that the type of system proposed would not pollute the ground or surface waters or pose a threat to public health in terms of the standard subterranean OSDS or any alternative systems which the Petitioner might theoretically employ, including the types mentioned above. The Petitioner's proof simply did not establish that installation of a standard subterranean OSDS would only pose a minor deviation from the permitting statute and rules cited herein nor did the Petitioner establish that no reasonable alternatives exist to the establishment of a standard OSDS, as that relates to the substantiality of the hardship which the Petitioner is experiencing in not getting the OSDS originally requested permitted; and the Petitioner did not establish that any system proposed would not pose a threat to public health or pollute ground or surface waters. In summary, the Petitioner did not establish that a sufficient hardship is experienced, because reasonable alternatives have not adequately been explored and considered by the Petitioner nor made a part of the subject of Petitioner's proof nor has the Petitioner established that a grant of a variance would involve only a minor deviation from the permitting statute and rules standards because it has not been proven that the public health nor the ground or surface waters would not be adversely affected.

   
   

4. Finally, because the property is located in the regulatory floodway of the Suwannee River, under Rule 10D- 6.047(6), Florida Administrative Code, before a mounded or filled OSDS could be permitted and installed, which is one alternative under consideration, a registered professional engineer must certify that the mounding of the system and installation of fill in the regulatory floodway area would not cause elevation of the "base flood" of the Suwannee River. No such engineering evidence or testimony has been adduced iii this proceeding; therefore, such an alternative system cannot herein be recommended for approval.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

6. The Petitioner seeks to obtain an OSDS permit or a variance from the statutory requirements for an OSDS permit for property located in Dixie County, Florida. Therefore, the Petitioner has the burden to establish proof necessary to demonstrate the entitlement to an OSDS permit or to a variance from the necessity of meeting the requirements to obtain a permit for construction of an OSDS on the property in question. See, Florida Department of Transportation v.

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

   
   

7. The basic requirements for OSDS permits are in Section 381.272, Florida Statutes, 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 mean 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 onsite sewage disposal system, provided the projected daily domestic sewage flow does not exceed an average of 1,500 gallons per acre per day, and provided satisfactory drinking water can be obtained and all distance and setback, soil condition, water 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 onsite 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 2,500 gallons per acre per day, and provided all distance and setback, soil condition, water table elevation and other related requirements which are generally applicable to the use of on site sewage disposal systems are met.

      
      

8. Rule 10D-6.046(7)(a), Florida Administrative Code, provides that each lot upon which an OSDS is installed have a minimum area of one-half acre.

   
   

9. The specific requirements for OSDS's for lots platted before 1972, as set forth in Section 381.272, Florida Statutes, does pertain to the aforesaid property because the property was platted in 1957.

   
   

10. Rule 10D-6.043(1), Florida Administrative Code, provides that no OSDS shall be installed without a permit obtained from the Respondent.

    
    

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

    
    

12. There is no evidence whether the acreage in question meets the one- quarter acre minimum requirement.

    
    

13. The exact nature of the soil type is not known. Water table elevations are not known. The gallons per day anticipated is 250, which is within the limits contemplated by the statute.

    
    

14. Rule 10D-6.046, Florida Administrative Code, describes the requirements for location and installation of an OSDS.

15. Rule 10D-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 10D-6.046(4), is not subject to frequent flooding. In addition, the bottom surface of the drainfield trench or absorption bed shall not be subject to flooding based on ten-year flood elevations...

    
    

16. The remainder of Rule 10D-6.047, Florida Administrative Code, goes on to describe the idea that mound systems requiring placement of fill material or construction above grade structures will not be authorized in the regulatory floodway unless there is certification by a registered engineer that the placement of fill or the structure would not increase water surface elevation of the base flood. That certification must be substantiated by data and the method of calculation provided by the engineer and is subject to review and approval by the county public health unit. When pursuing a permit application, the applicants must demonstrate entitlement based upon the statutory criteria. The information presented by the Petitioner does not approach the quality of proof contemplated by that process. The Petitioner has also failed to prove that the aforesaid property is located outside the ten-year flood plain elevation, which should entitle him to an OSDS permit.

    
    

17. Neither does the proof support the entitlement to a variance. The applicant bears the burden of proving that he is entitled to a variance pursuant to the statutory criteria, and he has failed to prove anything about their project beyond a basic description of the property, its location, general comment about the type of system he wishes to install, and the use he wishes to make of the property.

    
    

18. Section 381.272(8), Florida Statutes, describes the criteria which an applicant must meet when seeking a variance, which states as follows:

    
    

    (8)(a) The Department of Health and Rehabilitative Services may grant variances in hardship cases which may be less restrictive than the provision 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 elevations, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972.

19. Rule 10D-6.045(3), Florida Administrative Code, also describes the criteria for evaluating variance applications as follows:

    
    

    (3) Upon consideration of the merits of each application and the recommendations of the review board, the Staff Director, Health Program Office, has discretionary authority to either grant a variance as requested, grant a provisional variance or deny the variance request. 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. The decision to grant or deny a variance may be appealed through an administrative hearing. The county public health unit shall enforce variance provisions and shall take administrative action, in compliance with requirements of Chapter 120, Florida Statutes, to revoke any construction permit in which the terms of a variance are not met.

    
    

20. The authorization in Section 381.272(8), Florida Statutes, which permits the Respondent to grant a variance from the statutory requirements for an OSDS permit, is discretionary. The statute states: "The Department of Health and Rehabilitative Services may grant variances in hardship cases which may be less restrictive"; however, that section also requires that:

    
    

    A variance may not be granted pursuant to this section until the Department of Health and Rehabilitative Services is satisfied that:

    ...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.

    
    

21. Rule 10D-6.045(2), Florida Statutes, provides that the burden of presenting pertinent and supportive facts is on the applicant.

22. The Petitioner has failed to prove his entitlement to a variance at the hearing. He made no presentation through competent proof regarding specific details about the soil type, a meaningful explanation of the system which is to be employed for onsite sewage disposal. The record is devoid of any technical explanation of the project by a qualified professional engineer or an equivalent person which is the proof incumbent upon the Petitioner in light of the denial of an OSDS because the aforesaid property is located within the ten-year flood plain elevation and regulatory floodway, as referenced in Rule 10D- 6.047(6), Florida Administrative Code.

    
    

23. Furthermore, the Petitioner has failed to show by competent evidence that discharge from the system would not adversely affect the public health or significantly degrade the ground or surface waters. The Petitioner has not demonstrated that any hardship with which he is confronted related to the inability to obtain a permit as a part of the permit application process could not be adequately alleviated by reasonable alternatives to the OSDS proposed. Thus, the Petitioner is not entitled to an OSDS variance.

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 a variance from the statutory and regulatory requirements for an OSDS permit.

DONE AND ENTERED this 10th 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, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3111

Respondent' Proposed Findings of Fact:

All of Respondent's proposed findings of fact are accepted.

COPIES FURNISHED:

Sam Power, Agency Clerk Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda K. Harris, Esq. General Counsel Department of HRS

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Marilou Clark

Suwannee Plantation Realty Rt. 3, Box 73

Old Town, FL 32680

Frances S. Childers, Esq. Assistant District III Legal

Counsel Department of HRS

1000 Northeast 16th Avenue Gainesville, FL 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 least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should 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 this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

GARY M. KING,

Petitioner, CASE NO. 90-3111

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 and a variance 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:

Marilou Clark

Suwannee Plantation Realty Route 3 box 73

Old Town, FL 32680

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: 90-003111

Orders for Case No: 90-003111