STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD REMINGTON, )

)

Petitioner, )

)

vs. ) CASE NO. 90-3116

) DEPARTMENT OF HEALTH AND REHABILITATIVE ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on October 2, 1990, in Cross City, Florida. The appearances were as follows:

APPEARANCES

FOR PETITIONER: Richard Remington, pro se

165 Forest View Drive

Land O'Lakes, Florida 34638

FOR RESPONDENT: Frances S. Childers, Esq.

Department of HRS 1000 N.E. 16th Avenue

Gainesville, Florida 32609 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner is entitled to an on-site sewage disposal system ("OSDS") permit or the grant of a variance for installation of such a system on property which the Petitioner owns in the vicinity of 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 filing of an application by the Petitioner for an OSDS permit so as to become entitled to install an OSDS on his property in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run, unrecorded subdivision. The subject property is approximately one acre in size and was purchased by the Petitioner in December of 1989.

The Petitioner made application for the OSDS permit on January 17, 1990.

The proposed system for which application was made is for a single-family mobile home, containing two bedrooms, with an approximate 300-gallon-per-day sewage flow. The Petitioner obtained a benchmark elevation of the property through the

services of a registered land surveyor, as well as the ten-year flood elevation for the river mile to which this property corresponds, which information he obtained from the Suwannee River Water Management District. He supplied that information to the Respondent, Department of Health and Rehabilitative Services ("Department"). The Department made an on-site inspection of the property with a view toward whether the OSDS permitting rules and statute would be complied with by the installation of such a system. After determining the general nature of the site, the depth of the water table, the general susceptibility to flooding, and the wet and dry season water tables and prevailing soil types, the Department elected to deny the permit application. After that denial, the Petitioner sought an informal variance proceeding but was told by the Department's representatives that it would be pointless, in effect, to seek a variance through the Department's informal variance board procedure, since the Governor's Executive Order No. 90-14, in the Department's view, precluded it from exercising its discretion to grant any such variances for properties lying beneath the ten-year flood elevation. The permit application itself was denied only on the basis that the lot and the subject proposed installation site lies beneath the ten-year flood elevation for the Suwannee River for the river mile involved. Accordingly, the Department advised the Petitioner to seek a formal hearing of all issues before the Division of Administrative Hearings concerning the request for entitlement to install an OSDS; and the Petitioner availed himself of that opportunity.

The cause was duly transmitted to the Hearing Officer and came on for hearing as noticed. At the hearing, the Petitioner testified on his own behalf and presented the testimony of Richard Gavin Hunter. The Petitioner's four exhibits were admitted into evidence. The Respondent presented the testimony of James Fross. The Respondent's one exhibit was admitted into evidence.

Following the conclusion of the hearing, the parties, in addition to the Petitioner submitting written argument at hearing, elected to submit proposed findings of fact and conclusions of law after obtaining a transcript of the proceedings. The parties timely submitted their Proposed Recommended Orders, containing proposed findings of fact; and those proposed findings of fact are specifically treated in this Recommended Order and ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is the owner of real property located in Dixie County, Florida, more particularly described as Tract 10, Suwannee Shores Run Subdivision. The property is approximately one acre in size and was purchased in December of 1989. The subdivision is unrecorded, and there was no testimony regarding a platting date thereof.

   
   

2. On January 17, 1990, the Petitioner made an application for an OSDS permit for the aforesaid property. The application was for a new single-family mobile home system. The residence involved will contain two bedrooms and a heated and cooled area of approximately 480 square feet, with an approximate 300-gallon-per-day sewage flow.

   
   

3. Upon receiving the application, the Department's local public health official informed the Petitioner that he would have to obtain a benchmark elevation for the surface of his property and also establish the ten-year flood elevation for the property. The Petitioner, therefore, obtained the services of a registered land surveyor, who established a benchmark elevation for the subject property of 19.23 feet above mean sea level ("MSL"). The mark is actually 6 inches above ground level. The actual elevation of the surface grade

   of the property at the proposed septic tank system installation site is 19 feet above MSL. The ground water level at the time of the evaluation of the site by the Department's personnel was 66 inches below the surface of the lot. The wet season ground water or water table level is 60 inches below the surface of the lot. The property is characterized by slight to moderate limited soils, consisting of fine sand from 6 inches depth down to 60 inches depth. The first

   6 inches of soil near the surface of the property is organic in nature.

   
   

4. The information, contained in a report promulgated by the Suwannee River Water Management District and submitted to the Department by the Petitioner with the permit application, shows that the ten-year flood elevation for the property in question is 23 feet above MSL. That ten-year flood elevation was not refuted. The property, thus, is located within the ten-year flood plain of the Suwannee River; and it is also located within the "regulatory floodway". There is not a central water system available to the property, and potable water for the subject dwelling will come from a well.

   
   

5. In addition to lying beneath the ten-year flood elevation, the property lies within the regulatory floodway of the Suwannee River, as mentioned above. This means that if a mounded septic tank and drain-field system were installed, (which would likely result in appropriate treatment of the sewage effluent because of site conditions referenced herein); in order to install such a system, to raise the drain fields above the ten-year flood elevation, a certification by a registered engineer would have to be performed to establish that the installation of the required volume of fill dirt for the mounded system would not cause an elevation of the "base flood". No such engineering testimony or evidence was offered in this proceeding, however. Thus, this portion of Rule 10-6.047(6), Florida Administrative Code, has not been complied with.

   
   

6. The OSDS could appropriately be installed from an environmental standpoint, given the depth of appropriate moderate to slightly limited soils prevailing at the site and the depth of the water table. The estimated wet season water table is 60 inches below the existing surface grade, and the normal water table is 66 inches below the surface grade. Although organic soil prevails for the first 6 inches at the site; below the first 6 inches, the soils are characterized as being fine sand. This soil type and condition, as well as the depth of the water table below the location of the drain field and septic tank site establishes that installation and operation of an OSDS in this location would likely be successful. Since the property and the installation site are beneath the ten-year flood elevation, however, a mounded system would have to be installed to raise the bottom of the drain-field trenches or absorption beds above that ten-year flood elevation referenced above. Thus, although a mounded system would appear to be feasible, the appropriate engineering testimony, with regard to its presence in the regulatory floodway, was not offered. Thus, the grant of the permit based upon mounding of the system as a reasonable alternative approach to successful treatment and disposal of the effluent in question has not been established.

   
   

7. The Respondent, by letter of April 24, 1990, advised the Petitioner of the denial of the OSDS permit and also advised the Petitioner that he should pursue a formal administrative proceeding before the Division of Administrative Hearings, rather than file an informal variance application before the Respondent's own variance board. The Respondent took the position that a variance could not be granted from the requirements of Rule 10D-6.047(6), Florida Administrative Code, because the property was located within the ten- year flood elevation of the Suwannee River and because of the Respondent's interpretation of the effect of the Governor's Executive Order No. 90-14, which

   adopted by reference the Suwannee River Task Force recommendation that all such OSDS's be prohibited within the ten-year flood elevation. The Respondent thus declined to exercise its discretion, accorded it in the statute and rules cited hereinbelow, to entertain and consider a variance application. It was established that the lot in question is not subject to frequent flooding.

   However, because the surface grade is beneath the ten-year flood elevation, the bottom of the drain-field trenches or absorption beds would also be beneath the ten-year flood elevation, although the property is amenable to the installation of an effective OSDS otherwise because of the depth of the wet season water table and the types of soil prevailing at the site.

   
   

8. The Petitioner established a hardship due to the fact that he has paid a substantial sum of money for the property and now is unable to develop it unless entitlement to an OSDS or some reasonable alternative is gained. No substantial proof of a truly-effective, reasonable alternative method of treating the effluent in question was established by the Petitioner. The Petitioner did establish, however, that a mounded system could be made to successfully operate, treat and dispose of the sewage effluent. A mounded system, however, would necessitate the required engineering certification and calculations before installation. No such effort has been made with appropriate engineering personnel and no evidence of such was adduced in this proceeding.

   
   

9. The Petitioner has also raised the possibility that an aerobic septic tank and drain-field system might be an effective alternative treatment and disposal method for the property in question. An aerobic system involves the injection of air into the attendant septic tank to support aerobic bacteria, which break down and treat sewage at a faster, more effective rate than does the normal, anaerobic bacteria-based system. The resulting effluent is substantially lower in BOD and suspended solids than is the effluent from the normal, subterranean anaerobic septic tank and drain-field disposal system. The problem with such an aerobic system is that it involves mechanical equipment, especially an external electric motor and pump to force air into the system. This is disadvantageous in that if the equipment suffers a malfunction, the high level of treatment and disposal of the effluent is retarded. When the electric motor and/or pump malfunction and air is no longer injected into the septic tank to support the more active aerobic treatment bacteria, the system then ceases functioning as an aerobic system and becomes a simple anaerobic system using less effective anaerobic bacteria. In other words, it functions as a normal septic tank and drain-field system. If it has been installed in an area with marginal or deficient natural treatment conditions, such as inappropriate soils, high-water tables, or low surface elevations, beneath the ten-year flood elevation, for instance; the sewage, which is no longer being treated aerobically, can pose a threat to public health and the quality of the ground or surface waters involved at the site. The untreated or inadequately-treated sewage can rise to the surface of the property, back up in the residential toilets, or otherwise pollute ground or surface waters, if water table levels are too high. Thus, such systems would require inspection periodically to insure that they are in adequate working order, because if the mechanical system malfunctions, the system will continue to put effluent through its drain field, like a normal septic tank drain-field system, but without adequate treatment for a "low elevation" site such as this. In that circumstance, the occupants of the dwelling involved might not notice for long periods of time that the system is inoperative because it can continue to dispose of the effluent without it backing up into the residence. Accordingly, when the motor and air pump system becomes inoperative, there is less incentive for the owner to repair it. Thus, it is likely that if such a system were installed, some means would have to be found to insure that the owner keeps the system in good repair and working

   order. The means by which such an arrangement for insuring that an aerobic system operates properly at all times was not established in this record, however. The Department does not have the regulatory authority at the present time to conduct such periodic inspections nor the personnel or funds to do so. Consequently, the Petitioner failed to establish that reasonable alternatives to the proposed conventional OSDS exist.

   
   

   CONCLUSIONS OF LAW

   
   

10. 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).

    
    

11. 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 entitlement to the OSDS permit. See, Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Petitioner did not formally pursue a variance proceeding because of representations made by the Department that such an application would be futile in light of the Department's interpretation of the applicability of the Governor's Executive Order, referenced herein. The Petitioner's proof established no 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 hazards. Therefore, no substantial effort was made to comply with the permitting statutes and rules, themselves, through demonstration of effective, alternative sewage disposal and treatment systems and methods in the face of the fact that the property at issue lies beneath the ten-year flood elevation.

    
    

12. Likewise, no substantial proof was offered which would support the granting of a variance (due to hardship) 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 substantial proof was offered that no reasonable alternative to a conventional septic tank and drain- field disposal system, nor was it established that the effluent from the system proposed to be installed would not adversely affect the health of the Petitioner, the general public, nor that it would not adversely affect the quality of the surface or ground waters involved at the site. Thus, although the Department referred the Petitioner's informal variance request to this forum and proceeding instead of conducting an informal variance procedure of its own, the variance cannot 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 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 on-site sewage disposal system, provided the projected 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 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 2,500 gallons per acre per day, and provided all distance and setback, soil conditions, water table elevation and other related requirements which are generally applicable to the use of on-site sewage disposal systems are met.

       
       

13. 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. There is no dispute that the property parcel in question meets minimum-size requirements.

    
    

14. The specific requirements for OSDS's for lots platted before 1972, set forth in Section 381.272, Florida Statutes, were not shown to pertain to the property in question because the evidence does not establish a platting date for the property.

    
    

15. Rule 10D-6.043(1), Florida Administrative Code, provides that no OSDS 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 with an OSDS shall be determined by evaluation of lot size, anticipated hydraulic load to the system, soil and water table conditions, and soil drainage and site topography.

    
    

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 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 surface(?) soil maps, state of Florida water management districts 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 flood way 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, the 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. However, no such engineering proof has been adduced in this proceeding. Likewise, in view of the foregoing Findings of Fact concerning the disadvantages of an aerobic septic tank and drain-field system proposed as a possible alternative, it has not been established that such a system is a reasonable alternative for adequate and safe treatment and disposal of the expected sewage effluent, in terms of insuring against degradation of the ground and surface waters at the site and prevention of adverse impacts on the public health or the health of the occupants of the property. Thus, reasonable alternatives for the treatment and disposal of the expected sewage effluent in an environmentally-safe manner so as to justify the granting of the permit have not been established.

    
    

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 statute and rules cited herein. This application was denied because the site of the proposed drain-field system is within the ten- year flood elevation parameter for the Suwannee River. The Petitioner failed to prove that the property is above the ten-year flood elevation so as to entitle the Petitioner to an OSDS permit, in accordance with the rule cited last above. That was the sole basis for the denial of the permit application, as shown by the denial letter and testimony of record. In fact, the evidence affirmatively establishes that the property and proposed installation site lie beneath the

    ten-year flood elevation. Parenthetically, it should be noted that it was established that the appropriate types of soil extend 60 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 more than 24 inches below the bottom surface of the proposed drain-field trench or absorption bed. In fact, it was shown that the wet-season water table is 60 inches beneath the surface grade of the property and that the property is not actually subject to frequent flooding. Thus, the installation site would be appropriate for proper installation and operation of an OSDS. However, since the installation site is not in compliance with the ten-year flood elevation standard in paragraph (6) of Rule 10D-6.047, Florida Administrative Code, that is a sufficient basis for denial.

19. As found above, the Petitioner's proof does not support entitlement to a variance from the above-cited permitting statute and rules. The Petitioner did not demonstrate that no reasonable alternative exists for the treatment of the sewage in question but, rather, did not offer sufficient proof of one possible reasonable alternative, a mounded system, for the reasons delineated above. The Petitioner also did not demonstrate that the discharge from the sewage disposal system proposed would not adversely affect the health of the applicant, members of the public, nor that it would not significantly degrade the ground or surface waters involved. It was not demonstrated that the property in question was 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 Department had instructed the Petitioner as to the futility of seeking a variance or prosecuting a variance proceeding through its informal variance board process. This was because of the Department's perception concerning the applicability of the Governor's Executive Order No.

    90-14, as precluding any consideration of variance requests.

    
    

20. In that connection, on January 17, 1990, the Governor's Executive Order No. 90-14 regarding the Suwannee River basin was issued. In section 1 of that Order, the Governor directed the Department 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 Department has taken the position, therefore, that the Governor's Executive Order provides, in effect, that OSDS's 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 Department 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 Department, 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.

    
    

21. Section 381.272(8), Florida Statutes, along with the related rules enacted pursuant to it, authorizes the Department to 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 Department 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 a 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 Department 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-mentioned 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 Department a hardship basis for avoiding the stricture of a permit denial for noncompliance with the statute and rules pertaining to permitting itself.

    
    

22. If the Department 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 happen 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 Department 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 Governor's 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.

    
    

23. Rather, at most, the Governor's Executive Order can only serve as guidance to the Department 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 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 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, 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 the variance procedure be inaugurated and followed by the Department, in situations where permits are initially denied by the Department, that scheme must be employed and followed until repealed or amended.

    
    

24. Although the subject OSDS permit entitlement has not been proven by the Petitioner because of the ten-year flood elevation 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), 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 27th day of February, 1991, 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 28th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact

1. Accepted.

   
   

2. Accepted, but irrelevant.

   
   

3. Rejected, as immaterial.

   
   

4. Rejected, as immaterial.

   
   

5. Rejected, as immaterial and irrelevant. This is not a rule challenge proceeding, pursuant to Section 120.56, Florida Statutes.

   
   

6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

7-11. Accepted.

Respondent's Proposed Findings of Fact 1-10. 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

Richard Remington

165 Forest View Drive Land O'Lakes, FL 34638

Frances S. Childers, Esq. Department of HRS

1000 N.E. 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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICE

RICHARD REMINGTON,

Petitioner,

vs. CASE NO.: 90-3116

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 bye 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 excerpts 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 shell fishing 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 end ORDERED this 25th Florida.

day of March 1991, in Tallahassee,

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

by 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: Richard Remington, pro se

165 Forest View Drive Land O'Lakes, FL 34638

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 28 day of Mar , 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: 90-003116

Orders for Case No: 90-003116