STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARVIN H. OSTEEN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-3115

)

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, in Cross City, Dixie County, Florida, on August 20, 1990. The appearances were as follows:

APPEARANCES

For Petitioner: Marvin H. Osteen, Jr. pro se

Post Office Box 89 Suwannee, Florida 32521

For Respondent: Frances S. Childers, Esquire

Asst. District III Legal Counsel 1000 N.E. 16th Avenue Gainesville, Florida 32609

STATEMENT OF THE ISSUES

The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system (OSDS) permit or is entitled to a variance from the permitting requirements in the below-cited statutory provision and related rules, so as to be authorized to install an OSDS on his property near the Suwannee 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 application by Marvin H. Osteen, Jr. for an OSDS permit seeking authorization to install a subterranean septic tank and drain field sewage treatment and disposal system on his lot in Dixie County, Florida, in the vicinity of the town of Suwannee. The Petitioner applied for the permit and in the course of the application review process by the Department the Petitioner obtained benchmark elevations for determining the elevation of the surface grade of his lot, as well as the ten-year flood elevation, which he obtained from the Suwannee River Water Management District records and supplied the Department upon the Department's instruction. After reviewing this information and after Mr. J. A. Fross of the Department made an on-site evaluation of the property in question, the Department denied the permit

application because the wet season water table did not afford a 24-inch differential between the bottom of the proposed drain field trench or absorption bed and the water table elevation for the wet season. The Department also denied the application because the property in question allegedly lies below the ten-year flood elevation for the Suwannee River at the river mile at which the property is located. Upon receipt of the denial, the Petitioner announced his intention to seek a formal proceeding to contest that denial. In the meantime, the Department had also advised him, by its denial letter, that rather than entertaining any application for a variance on his part that the Petitioner should merely proceed to a formal hearing before the Division of Administrative Hearings since no variances were being granted on account of the entry of the Governor's Executive Order 90-14, adopting a Suwannee River Task Force report and recommendation to the effect that no OSDS permits should be granted, or systems installed, in the Suwannee River basin beneath the ten-year flood elevation. The Department takes the position that its discretion to entertain and grant variances from the permitting rules in this particular was removed by the effect of the Governor's Executive Order. Consequently, no formal variance application has actually been filed by the Petitioner.

The cause proceeded to hearing as noticed at which the Petitioner presented his testimony and two exhibits which were admitted into evidence. The Respondent presented the testimony of James Fross and Kevin Sherman and had two exhibits admitted into evidence. The Respondent elected to have the proceedings transcribed and the parties were given the right to file proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent agency filed a Proposed Recommended Order, which is treated in this Recommended Order and in the Appendix attached hereto and incorporated by reference herein. The Petitioner filed no Proposed Recommended Order.

FINDINGS OF FACT

1. The Petitioner owns certain real property in Dixie County, Florida in the vicinity of the town of Suwannee. The property is more particularly described as Lot 511, Suwannee Shores III. The property is located in Section 19, Township l3 South, Range 12 East, in Dixie County. The lot is approximately

   50 feet by 100 feet in size and was purchased in 1985.

   
   

2. The Petitioner made application for an OSDS permit on March 8, 1990 for the property. The residence which the proposed system would serve consists of a heated or cooled area of approximately 24 by 34 feet.

   
   

3. The Petitioner had an elevation of the property at the proposed installation site performed by a registered land surveyor at the behest of the Department, when he learned from the Department representative that such would be required before a permit could be granted. The Department also required the Petitioner to furnish evidence of whether the property was above or below the ten-year flood elevation. Accordingly, Petitioner's exhibit 1 establishes a benchmark elevation of 4.1 feet above main sea level (MSL) for the property and installation site. The ten-year flood elevation for the property in question is

   17 feet above MSL. This is established by a report prepared by the Suwannee River Water Management District and admitted into evidence without objection, based upon records maintained by the Water Management District which contain data from the Federal Emergency Management Administration (FEMA). That data shows that for the river mile of the Suwannee River where the property is located, which is river mile 3, that the ten-year flood elevation is 17 feet

   above MSL. Thus, the property in question is located within the ten-year flood elevation of the Suwannee River. It is not, however, located within the regulatory floodway of the Suwannee River.

   
   

4. Thus, the Petitioner has not established that the property is above the ten-year flood elevation for the Suwannee River. Nor have they established that a sufficient differential exists between the bottom of the proposed location of the drain field trenches and the wet season water table. In fact, Respondent's composite exhibit 1 and the testimony of Mr. Fross establishes that the wet season water table is only approximately 3 inches beneath the surface of the existing grade of the lot. The water table existing at the time of the site evaluation by Mr. Fross was only 36 inches below existing grade which would not allow sufficient differential between the bottom of the drain field trench and the water table, because less than 24 inches would separate the two planes. The results of Mr. Fross's site evaluation do show that the proper "slight limited" soils exist at the site down to a depth of 36 inches, at least where the water table existed at the time of the evaluation. It was also established that the property has a potable water supply from a central water system for the town of Suwannee and, therefore, the various set back distance related to the distance the proposed septic tank and drain field have to be separated from a potable water well or wells would not apply. These last two factors showing compliance with the portions of the rule which dictates the type of soils which must be present for such a system to be installed and the protection for potable water supplies, are insufficient to justify grant of the permit, however. The fact remains that the property is some 12.9 feet beneath the ten-year flood elevation and that it is not possible, starting from the existing grade to install a septic tank and drain field system at sufficient elevation above the water table at the present time, or the wet season water table, so that an appropriate distance for effluent to be treated in appropriate slight limited soil will exist. Finally, the Petitioner did not establish any reasonable alternatives to treatment of the effluent from the residence to be placed on the lot and thus did not establish that a means can be found to prevent the effluent from the OSDS from adversely impacting the public health or the surface or ground waters involved at the disposal site. Thus, it has not been established that any type of OSDS sought to be installed upon the lot in question would be an immaterial deviation from the permitting requirements in the statute and rules cited below.

   
   

5. The Petitioner did not formerly apply for a variance from the permitting statute and rules. This is because the Department advised him that availing himself of the informal variance procedure would be futile because the Governor's Executive Order 90-14, entered on January 17, 1990, in the view of the Department, took away the Department's discretion to entertain variance applications and to consider whether to grant them for properties lying beneath the ten-year flood elevation of the Suwannee River. That Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation be prohibited, by its adoption, by reference, of the Suwannee River Task Force recommendations. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner definitely will undergo a hardship if a permit or variance is not granted because of the money expended to purchase the lot, which will be largely unusable without the ability to establish a residence on it by installing an OSDS. It has not been proven by the Petitioner that no reasonable alternatives exist to the installation of a conventional OSDS subterranean- type system on the lot. Thus, one element of the variance criteria cited below has not been met nor has it been established that the installation of an OSDS would not have an adverse impact on public health and would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of the Petitioner's entitlement to a variance can be

   entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof. It particularly has not been established that a grant of an OSDS permit or variance for such a system to be installed in this lot would not be a substantial deviation from the permitting requirements enumerated below. This is particularly true because the property is such a great distance beneath the ten-year flood elevation.

   
   

6. In summary, in addition to the findings in the last above paragraph, it has not been established that a sufficient distance between the water table elevations and the bottom of the proposed drain field trench location will exist so as to comply with the permitting requirements in this regard so as to justify the grant of an OSDS permit nor has it been shown that the property is above the ten-year flood elevation for purposes of that permitting requirement and Rule 10D-6.47(6), Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

   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). 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. The Petitioner's proof neither spoke to potential alternative sewage disposal systems and methods for the property in question, which might safely and effectively treat the effluent without causing degradation of ground or surface waters or health hazard because of that same representation concerning the Respondent's belief as to the effect of the Governor's Executive Order. No proof supportive of the existence of available alternative sewage disposal systems, which might be effective in treating the sewage effluent contemplated for the property in question, was offered.

   Therefore, no effort was made to comply with the permitting statutes and rules, themselves, through demonstration of effective alternative sewage disposal and treatment systems. 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.

   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, 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 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 are generally applicable to the use of on-site sewage disposal systems are met."

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.

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.

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.

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 10D-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."

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 drainfield system is beneath the ten-year flood elevation parameter for the Suwannee River, and sufficient differential distance containing slight limited soils did not exist between the bottom of the proposed drain field and the wet season water table level. 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. The Petitioner did not establish that the appropriate types of soil extended 42 inches or more below the bottom surface of the proposed drainfield trench or absorption bed, in accordance with Rule 10D-6.047(1), Florida Administrative Code, nor that the water table elevation at the wettest season of the year is at least 24 inches below the bottom surface of the drainfield trench or absorption bed. The failure to show compliance with these additional standards for OSDS permitting constitutes an independent basis for denial of the permit.

As delineated 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 reasonable alternatives do not exist 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. 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 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 90-14, as precluding any consideration of variance requests.

In that connection, in Executive Order 90-14, the Governor directed the Respondent to implement the Suwannee River Task Force recommendation that OSDS's should be prohibited within the ten-year flood elevation 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 Governor's Executive Order indicates that OSDS's so situated are sources of pollution in the Suwannee 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, 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.

Section 381.272(8), Florida Statutes, 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 statutory and rule 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 provision and rules 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 an applicant which happened to lie beneath the ten-year flood elevation for the Suwannee 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. Rather, at most, the Governor's Executive order, incorporating Recommendations of the Suwannee River Task Force Report, 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 permitting rule standards for such installations 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 Suwannee 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. Although the subject OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood elevation and water table elevation considerations 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

It is, accordingly, RECOMMENDED:

That a Final Order be entered denying the application of Marvin H. Osteen, Jr. for an OSDS permit.

DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF

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 CASE NO. 90-3115

Respondent's Proposed Findings of Fact 1-10. Accepted.

COPIES FURNISHED:

Marvin H. Osteen, Jr. Post Office Box 89 Suwannee, FL 32521

Frances S. Childers, Esquire Asst. District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, FL 32609

Sam Power, Agency Clerk

Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

Linda Harris, General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Blvd.

Tallahassee, FL 32399-0700

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

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STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

MARVIN H. OSTEEN, JR.,

Petitioner, CASE NO. 90-3115

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 ()f 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 15th 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:

Marvin H. Osteen, Jr., pro se Post Office Box 89

Suwannee, FL 32521

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 22nd 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: 90-003115

Orders for Case No: 90-003115