STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DESMOND HARBROE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4170
)
DEPARTMENT OF PROFESSIONAL )
REGULATION SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
In accordance with due 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: Desmond Harbroe
4550 N.W. 43rd Street
Ft. Lauderdale, Florida 33319
For Respondent: Frances S. Childers, Esquire
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 an on-site sewage disposal system permit or the grant of a variance from the rule by which that permit application was denied so as to be authorized to install an on-site sewage disposal system (septic tank system) for his property near the Suwannee River in Dixie County, Florida within the purview of Section 381.272, Florida Statutes and Chapter 10D-6, Florida Administrative Code.
PRELIMINARY STATEMENT
This cause arose when the Petitioner, the owner of certain real property located in Dixie County, Florida, made application for an on-site sewage disposal system permit (OSDS) to the Respondent agency. After the agency reviewed that application within the framework of the statutes and rules cited herein it determined to deny the application, advising the Petitioner that he could seek a variance from the pertinent provisions of Chapter 10D-6, Florida Administrative Code, as provided for in Section 381.272(8), Florida Statutes and Rule 10D-6.045, Florida Administrative Code. The Petitioner thereupon made an application for such a variance. It, too, was denied on the basis of an Executive Order (NO. 90-14) entered by the Governor of the State of Florida on January 17, 1990, wherein he directed the Department to implement the Suwannee
River Task Force recommendations described in a "task force report" and which, in pertinent part, recommended that OSDS's be prohibited within the ten-year flood elevation. The Department has taken the position that the Governor's Executive Order, incorporating by reference that recommended prohibition, makes mandatory the denial of permits and variances for such systems if they lie within the ten-year flood elevation of the Suwannee River basin. In effect, it no longer considers the variance requests, for properties and applications within the above circumstances, to be subject to the Department's discretion.
Upon the denial of the permit application and the variance application, the Petitioner sought a 120.57(1), Florida Statutes hearing and this proceeding ensued. At the hearing, the Petitioner presented the testimony of himself, Desmond Harbroe. He presented one exhibit which was admitted into evidence.
The Respondent presented the testimony of Emily Wilson, James Fross, and Richard Hunter. The Respondent's four exhibits offered were admitted into evidence.
Subsequent to the hearing the parties obtained the transcript of the proceedings and were accorded time to submit proposed findings of fact and conclusions of law in the form of proposed recommended orders. The Respondent has submitted such a pleading and it is considered and addressed in this recommended order and specifically in the appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner, Desmond Harbroe, owns real property in Dixie County, Florida consisting of a lot described as lot 28 of Riverbend Estates. The lot in Riverbend Estates is located at "Hinton's Landing" on the west bank of the Suwannee River. The lot itself is located approximately 1500 feet west of the shoreline of the Suwannee River on a connected canal. The canal is characterized by high banks at the location of the lot and the lot is one of the highest lots in the subdivision, with overstory vegetation consisting of large pines and live oaks. The lot is gently sloping and characterized by well- drained soil consisting of sand down to a depth of 72 inches (a "slight limited" soil). The lot is approximately one and one quarter acres in size and was purchased May 29, 1976. The Petitioner contemplates constructing a single family residence on the lot and it does not presently contain an OSDS. The proposed residence would consist of a two bedroom dwelling with a heated or cooled area of approximately 1200 square feet. A dwelling of this size and type is equated in the standards in the Department's rules with production of 450 gallons per days (GPD) of sewage flow. Although no specific evidence of expected sewage is of record, there is no dispute regarding that figure.
Herbert H. Raker is a registered land surveyor located at Box 626, Cross City, Florida 32628. Mr. Raker surveyed the subject lot and established a benchmark elevation of 13.72 feet above main sea level (MSL). That benchmark is six inches above the actual ground or grade level at the location of the benchmark. The site of the proposed installation itself is at an elevation of
13.22 feet above MSL. The ten-year flood elevation for the subject property is
15 feet above MSL. That elevation was established through data supplied by the Suwannee River Water Management District to the Petitioner and submitted to the Department in the application process. That information and the document upon which it is predicated is hearsay, but was not objected to at hearing and, in any event, constitutes an exception to the hearsay rule in the category of government records, compilations and reports for purposes of Section 90.803(8), Florida Statutes, and is, thus, admissable and accepted by the Hearing Officer.
The subject property purchased by the Petitioner was for building a single family residence as described above. On December 12, 1989 the Petitioner received a letter from the Suwannee River Water Management District advising that there was no objection by the District to filling the lot in order to bring the surface grade level of that property to a sufficient height so as to comport with the "two year flood" elevation. The critical elevation in relation to the rules at issue however is the ten-year flood elevation. This advice from the Water Management District does not address the issue of filling the lot to bring it up to a level so that the bottom of the subject drain fill proposed would be above the ten-year flood elevation and thus comport with the rules at issue. In this connection, the property is located within the ten year flood plain based upon the evidence establishing that flood plain level to be at IS feet above MSL.
The property is also located within the "regulatory floodway" of the Suwannee River. This is a geographical area closer in proximity to the actual free flowing portion of the river than is the boundary of the ten-year flood elevation demarcated area. The rule cited below provides that mounded systems requiring a placement of fill material, or construction above grade, will not be authorized in the regulatory floodway unless there is certification by registered engineers that the placement of fill or the structure placed would not increase the water surface elevation of the "base flood". That certification must be substantiated by data and the method of calculation used by the engineer must be provided. Here there is only a two and one half foot difference between the grade level of the property involved at the site of the proposed installation and the 15 foot ten-year flood elevation. Thus, as Mr. Harbroe indicates, given the overall size of his lot, it would be possible to fill the property to the proper grade level so that the bottom of the drain field trenches, when installed in the resulting mound, would be above the ten- year flood elevation. The Petitioner however supplied no detailed information about how such an alternative system might be installed and operate and, most particularly, did not supply the requisite engineering certification and information which might show that the installation of such a mounded system would not raise the level of the base flood. This might have been done, for instance, by establishing that a sufficient volume of fill could be removed from his property, elsewhere, to build the requisite mound and thereby not alter the surface elevation of the base flood. Such evidence is lacking in this proceeding however and cannot therefore serve as a basis for a grant of the permit, by means of illustrating an alternative system or approach for treating the sewage effluent which will comport with the rules.
Pursuant to the authority of the statutes cited in the conclusions of law below and in related rules, lots platted before 1972 are accorded special consideration in determining whether to grant septic tank system permits (or variances). The Petitioner, however, did not adduce evidence of whether the subdivision known by the name "Riverbend Estates" of which his lot 28 is a part, is a platted subdivision at all, and did not establish that even if it is that it was platted and recorded before 1972. Thus no evidence has been adduced which will justify the special consideration provided for in the authority cited below.
The grant of variances from the permitting rules involve the demonstration of hardship as a basic consideration. Hardship involves a demonstration that there is no reasonable means by which an on-site disposal system can be installed which will comply with the permitting rules, that is, impossibility of compliance is the bellwether for demonstration of hardship. It is also provided in the variance statute and rules cited below that the hardship
may not be intentionally caused by the action of the applicant for the permit or variance himself. The Petitioner, having the burden of proof here, did not adduce direct evidence to establish that any hardship preventing compliance with the permitting rules was not intentionally caused by the Petitioner. However, the overall tenor of the Petitioner's testimony establishes inferentially, without doubt, that the hardship involving the Petitioner's impossibility of compliance with the permitting rules, given the presently prevailing grade level of his lot and installation site, was caused merely by his purchase of the property. He took no action involving that purchase to place himself in a position where he intentionally could claim a hardship situation and a justification of variance from the permitting rules and thus render himself legally capable of installing the subject system. He merely purchased the lot in good faith with, the intention of using it for a single family dwelling and did not intend by that mere act to place himself in a position to claim a hardship situation and thus circumvent the permitting rules. The similar use of the nearby lots in the subdivision for single family dwellings and which he was aware already had permitted septic tank type on-site disposal systems in place and operating led him to believe he could install a similar system. He was thus an innocent purchaser and did not intentionally create a hardship situation to thereby avoid compliance with permitting rules.
In fact, however, the Petitioner has not truly established that he is in a hardship situation, that is, that he can not possibly comply with the permitting rules. This is because, by his own admission, he has sufficient land area on his lot to permit the "mounding" of an on-site disposal system. If this were accomplished it is quite likely that he could comply with the permitting rules and not require a variance, based upon a showing of hardship. The problem with this approach is that the Petitioner's proof fails because he did not adduce the requisite engineering certification and testimony justifying the grant of a permit based upon the building of the lot and mounding of the system. If this were accomplished in the future, it is quite likely that a permit could be granted for this lot.
In a like vein, in terms of the variance issue portion of this proceeding, it has not been demonstrated by the Petitioner that no reasonable alternative exists for the treatment of the sewage involved nor has it been demonstrated that the discharge from the Petitioner's proposed 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. In this last regard, it although soil conditions prevailing at the proposed installation site and water table elevations beneath the surface of the property are appropriate as that relates to the requisite interval of "slight limited" soil between the bottom of drain field absorption beds and the water table elevation, the fact remains that these trenches or beds are beneath the ten-year flood elevation and thus pose the potential to degrade ground or surface testers. Thus the other requisite elements for establishment of entitlement to a variance from the permitting rules have not been made out by the Petitioner's proof. In fact, the Petitioner's proof establishes that a reasonable alternative may indeed exist for the treatment of the sewage involved with mounding of the system, since his grade elevation is only approximately 2.5 feet below the relevant flood elevation and unrefuted evidence shows that he has sufficient area on his lot to permit the mounding of the system with the requisite adjacent "buffer area". This constitutes a reasonable alternative which may comply with the permitting rules. Unfortunately, however, Petitioner's proof did not include the requisite engineering information and certification so that a recommendation for grant of the permit in the regulatory floodway can be made at this time.
Having been denied his permit application on December 19, 1989 the Petitioner on March 5, 1989 applied for the subject variance referenced above. On April l9, 1990 the Petitioner was advised by the Respondent that it was useless to proceed with a variance application and that a formal administrative hearing should be sought before Division of Administrative Hearings instead. This is because of Executive Order 90-14 entered by the Governor, which incorporated the "Suwannee River Task Force" recommendation in evidence and, specifically, "recommendation #36." That portion of the report in effect recommended that on-site sewage disposal systems within the ten year flood plain area should be prohibited. The Department interpreted the effect of that executive order, incorporating the recommended prohibition from the task force report, to mean that such variances absolutely could not be granted by the Department, hence, its recommendation to the Petitioner and others similarly situated, that they should immediately seek a formal administrative hearing on the question, rather than expend time and expense pursuing the Department's internal variance procedure. The Department has thus in this in similar cases interpreted that executive order to create, and effect, a conclusive presumption that variances can not be granted in any case in which the installation site for the on- site sewage disposal system is at or beneath the ten-year flood elevation. In effect, therefore, it declines to exercise any discretion when confronted with variance request related to lots or property where the installation site for the proposed system occurs beneath the ten-year flood elevation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. See Section 120.57(1), Florida Statutes. The Petitioner's are seeking an on-site sewage disposal system permit or a variance from the statutory and regulatory requirements for granting such permits related to their property located in Dixie County, Florida in the subdivision known as Riverbend Estates. The Petitioners have the burden to establish proof requisite to demonstrate the entitlement to the on-site sewage disposal system permit or alternatively entitlement to a variance from the entitlement rules in order to become entitled to construct the 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).
The basic requirements for OSDS permits are found in Section 381.272, Florida Statutes which provides pertinently as follows:
Where a publicly owned or investor owned sewage system is not available, the Department of Health and Rehabilitative Services may issue permits for construction and installation upon site sewage disposal systems under conditions as described in this section.
Subdivisions and lots in which each lots has a minimum of at least one-half acre and either a minimum dimension of 100 feet of 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 the private potable well and
on-site sewage disposal system, provided the projected daily 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 condition, water table elevation and other requirements of this section and rules promulgated hereunder can be met.
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 condition, water table elevation and other related requirements which are generally applicable to the use of on-site sewage disposal systems are met."
Rule 10D-6.046(7)(a), Florida Administrative Code, provides that each lot upon which an on-site sewage disposal system is installed must have a minimum area of one-half acre.
The specific requirement for on-site sewage disposal systems for lots platted before 1972 set forth in Section 381.272, Florida Statutes does not pertain to the lot in question because no competent evidence was presented at hearing that, if the property is platted that it was platted before 1972. Thus, the special considerations accorded in the statute and rules for lots platted before 1972 are not shown to be operative in this case.
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 of Health and Rehabilitative Services.
Rule 10D-6.044(3), Florida Administrative Code states that suitability of the property for the 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, soil drainage and site typography. It has been established that the lot in question does meet the minimum one-half acre size requirement. It is also been established to be a well drained lot, with appropriate gently sloping site typography. The Petitioner's evidence does not establish what The appropriate soil type and water table elevation prevails on the lot and project site with regard to the required interval of slight limited soil between the water table elevation and the bottom of the drainfield absorption bed system. Approximately 450 gallons per day hydraulic load on the system is anticipated, which is within permissible limits contemplated by the above statute. Rule 10D-6.046, Florida Administrative Code describes the requirements for location and installation of an OSDS, including reference to the final lot elevation of the site and the requirement for additional unobstructed land surrounding the site of the system. Rule 10D-6.047(6), Florida Administrative Code then 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 elevation. "
The remainder of Rule 10D-6.047, Florida Administrative Code references mound systems requiring placement of fill material or construction above grade. It states, in effect, that structures such as this will not be authorized in a regulatory floodway, where the subject property is located, unless an engineer certifies that placement of the fill or structure would not increase the water surface elevation of the base flood. Certification must- be substantiated by data including the method of calculation provided by an engineer. As referenced in the above findings of fact, no such engineering information has been adduced, merely the proposal by the Petitioner that a mound system could be built on this property. If, in a later permit or variance application the Petitioner could come forward with the required engineering information establishing that a sufficient volume of fill could be removed elsewhere from his property in order to create the mounded system above the ten- year flood elevation, then, if the requisite soil type and water table type information were also provided, as referenced herein, then such a proposed system might be permitable. When pursuing a permit application however, the applicant, the Petitioner herein, must demonstrate entitlement based upon the statutory criteria. The information presented by the Petitioners does not rise to the quality of proof contemplated by that permitting process and mandated in the statutes and related rules cited herein. The Petitioner has failed to establish that the property is located outside the ten-year flood elevation has he established whether reasonable alternative systems are or are not available for purposes of permit or variance entitlement. Because of this and because of the failure of proof concerning entitlement to a permit based upon the engineering justification for a mounded system, the permit can not be recommended to be granted.
The Petitioner has also sought a variance from the permitting requirements in the rules and statutes. The proof however does not support entitlement to a variance. Section 381.272(8), Florida Statutes, describes the criteria applicants must meet when seeking a variance. Those requirements are as follows:
"(8)(a) The Department of Health and Rehabilitative Service may grant may grant variances in hardship cases which may be less restrictive than the provisions specified in this section. A variance may not be granted pursuant to this section until the Department of Health and Rehabilitative Services is satisfied that:
The hardship was not caused intentionally by the action of the applicant;
No reasonable alternative exists for the treatment of the sewage; and
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 condition, water table elevations, and set back provisions are determined by the Department to be satisfactory, special consideration shall be given to those lots platted prior to 1972."
Rule 10D-6.045(3), Florida Administrative Code, also describes the criteria for evaluating variances 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 on-site 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. More soil conditions, water table elevation, and set back 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 on 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 or the variance are not met."
Rule 10D-6.045(2), Florida Administrative Code, provides that the burden of establishing pertinent and supportive facts is on the applicant in seeking a variance. The Petitioners failed to prove their entitlement to a variance. While the Petitioner's testimony reveals that the hardship caused by the inability to obtain a permit for the subject system due to its being in the regulatory floodway and beneath the ten-year flood elevation is not an intentionally caused hardship, for purposes of the first criteria quoted above the Petitioner has not established that no reasonable alternative exists for the treatment of the sewage but the installation of the system on the property as it presently exists beneath the ten-year flood elevation. In fact, the evidence shows that a reasonable alternative in the form of a mounded disposal system may serve to adequately treat the sewage involved, but the record is devoid of any technical explanation of such a project by a qualified professional engineer, to certify that the installation of a mounded system will appropriately treat the
sewage so as not to significantly degrade ground or surface waters or adversely affect the health of the public and that the mounded system proposed by the Petitioner would not elevate the base flood level. But such a system might be a reasonable alternative if adequate proof in this form could be adduced, which was not done at this hearing. Consequently, the second element of proof necessary to obtain a variance has not been established.
Finally, the third element of a variance entitlement, as quoted above, which involves a showing that the discharge from the system will not adversely affect the health of the applicant, members of the public, nor significantly degrade ground or surface waters has not been established by the Petitioner's proof. In summary, because the proposed site of the installation is located beneath the ten year flood evaluation and is within the regulatory floodway, the permit can not be granted in light of the fact that no engineering testimony justifying mounding of the system within the regulatory floodway was adduced and, because the three elements required for proof of entitlement to a variance have not been established, a variance can not be granted.
On January 17, 1990, Governor Martinez issued Executive Order 90-14 regarding the Suwannee River. In Section one of that order the Governor directed the Department to implement the Suwannee River Task Force recommendations described in the task force report. Recommendation #36 of that report (in evidence) bears on the issues pending in this matter. That recommendation states as follows:
On-site sewage disposal systems, private wells and central waste water facilities should be prohibited within the ten year flood plain and should otherwise be in compliance with applicable rules and regulations."
The Governor issued his executive order based upon his authority derived from Article II, Section 7 of the Florida Constitution and incorporated recommendation #36 by reference in that executive order by incorporating the entire task force report."
The Department has taken the position that the Suwannee River Task Force report incorporated in the Governor's executive order indicates that on- site sewage disposal systems are sources of pollution in the Suwannee River and that regulations prohibiting installation of OSDS is within the ten year flood plain are for the purpose of protecting the public health and prevention of significant degradation of ground or surface waters. The Department has thus interpreted the Governor's executive order as applied to its consideration of variance applications as creating a conclusive presumption that no variances can be granted if the subject property and installation is at or beneath the ten- year flood elevation. The authorization in Section 381.272(8), Florida Statutes and the related rules, quoted above, permitting the Department to grant variances from the statutory and rule requirements for OSDS permits constitutes authority and direction from the Florida legislature to the Department to allow for variances from strict statutory and rule permit requirements, authorizing the grant of variances when the proper requirements enunciated in that statutory provisions and the pendant rules are met. This section thus clothed the Department with discretion in this area and with the mandate that such a variance procedure be enacted and followed for the benefit of the public who seek permits, have them denied and therefore need an opportunity to demonstrate hardship entitlement to a variance under the purview of the three enumerated
variance criteria. The Department has discretion to deny or grant a variance, but it 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 the above-quoted related rule. This statutory and regulatory scheme sets up a discreet variance procedure to be followed and accords the affected public the opportunity to avail themselves of it. If the Department persisted in its interpretation of the effect of the Governor's executive order it would, in effect, be creating a conclusive presumption against the grant of any variances for property owned by any applicants which happens to lie beneath the ten-year flood elevation. The executive order of the Governor can not legally obviate the mandate by the legislature that the Department exercise discretionary authority in such matters within the bounds of the variance criteria set forth in Section 381.272(8), Florida Statutes and the rule enacted by the Department in furtherance of that section. If the executive order is so interpreted it would constitute a violation of the Doctrine of Separation of Powers derived from the Florida Constitution, and thus, be impermissible. Rather, at most, the Governor's executive order, and the task force report recommendation it incorporates, can serve merely as guidance to the Department in considering variance applications under the mandated variance criteria referenced above, as that relates to the quantity and quality of proof expected of variance applicants regarding the issue of whether reasonable alternatives exist for the treatment of sewage and whether discharges will adversely affect health of applicants or members of the public or significantly degrade ground or surface waters. It can not be appropriately used as a conclusive presumption, having blanket application to all cases, dictating that all variances be denied if they relate to property below the ten- year flood elevation regarding adverse health effect or degradation of ground or surface waters. Since subject statute constitutes a legislative mandate and the rules enacted under it being enacted pursuant to power delegated by the legislature to the agency, that scheme must be followed until repealed or amended.
Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is
RECOMMENDED:
That a final order be entered denying the Petitioner's application for an on-site sewage disposal permit and denying a variance from the statutory and rule requirements related to permitting for the reasons found and concluded above.
DONE and ENTERED this 18th day of December, 1990, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administration Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division Administrative Hearings this 18th day of December, 1990.
APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4170
Respondent's Proposed Findings of Fact:
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted.
Accepted.
Accepted but not directly material to resolution of the issues presented for adjudication.
Petitioner's Proposed Findings of Fact: (None submitted)
COPIES FURNISHED:
Desmond Harbroe
4550 N.W. 43rd Street Ft. Lauderdale, FL 33319
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 Boulevard
Tallahassee, FL 32399-0700
Linda Harris, General Counsel
Department of Health and Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
DESMOND HARBROE,
Petitioner, CASE NO. 90-4170
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 Swuannee 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:
Desmond Harbroe, pro se 4550 Northwest 43rd Street Ft. Lauderdale, FL 33319
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
| Issue Date | Proceedings |
|---|---|
| Dec. 18, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 03, 1991 | Agency Final Order | |
| Dec. 18, 1990 | Recommended Order | Septic tank install site below 10 year flood plain and permit applicant did not show lack of harm to water or health or meet hardship standards for variance |
