STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT M. PAUL & V.M.P. )

CORPORATION, )

)

Petitioners, )

)

vs. ) CASE NO. 92-7443RX

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, conducted a formal hearing in the above-styled cause on February 26, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioners: Sidney F. Ansbacher, Esquire

Post Office Box 4548 Jacksonville, Florida 32201-4548

For Respondent: Charlene Peterson, Esquire

District 4 Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Amy M. Jones, Esquire Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

Whether Rule 10D-6.045, Florida Administrative Code, or portions of that rule, constitute an invalid exercise of delegated authority.

PRELIMINARY STATEMENT

On December 17, 1992, Petitioners Vincent M. Paul and V.M.P. Corporation initiated these proceedings by filing a Petition for Administrative Hearing for Determination of Rule Invalidity. The petition challenges Rule 10D-6.045, Florida Administrative Code, as an invalid exercise of delegated authority.

Respondent Department of Rehabilitative Services also seeks to deny a variance request by Petitioners and to impose a civil penalty upon Petitioners. Respondent's application of the challenged rule in those instances is the subject of a separate recommended order issued in Division of Administrative Hearings (DOAH) Case No. 92-159 and DOAH Case No. 92-7553. 1/

At the final hearing, Petitioners presented the testimony of three witnesses and entered 19 exhibits into evidence. Respondent presented testimony of four witnesses and three exhibits.

The transcript of the final hearing was filed with the Division of Administrative Hearings on March 29, 1993. Proposed final orders submitted by the parties are addressed in the appendix to this Final Order.

FINDINGS OF FACT

1. V.M.P. Corporation operates a facility known as Stud's Pub in Jacksonville, Florida. Vincent M. Paul owns the facility and the corporation. The facility is on lots that were platted prior to 1972.

   
   

2. Respondent is the statutory entity with authority for granting variances for onsite sewage disposal systems regulated by Respondent pursuant to provisions of Chapter 381, Florida Statutes. Section 381.0065(8)(a), Florida Statutes (1991) specifically provides:

   
   

   The department 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 is satisfied that:

   1. The hardship was not caused intentionally by the action of the applicant;

   2. No reasonable alternative exists for the treatment of the sewage; and

   3. The discharge from the individual sewage disposal system will not adversely affect the health of the applicant or other members of the public or significantly degrade the ground or surface waters.

      
      

      Where soil conditions, water table elevation, and setback provisions are determined by the department to be satisfactory, special consideration shall be given to those lots platted prior to 1972.

      
      

3. Rule 10D-6.045(3), Florida Administrative Code, is the portion of the rule which is the subject of this proceeding and, in pertinent part, reads as follows:

   
   

   Upon consideration of the merits of each application and the recommendations of the review board, the Deputy Secretary for Health or his designee 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 proper use of the onsite sewage disposal system will not adversely affect the health of the applicant, any persons using or living on the property, or other members of the public. An applicant must also show that the granting of a variance will not significantly degrade ground or surface waters. Variances shall

   only be granted to the permit applicant and are not transferable to other persons unless specifically authorized by the department as a stipulation of the variance approval. . . . (emphasis added).

   
   

4. The rule also tracks the language of Section 381.0065(8)(a), Florida Statutes (1991), and requires that "special consideration" be given to those lots platted prior to 1972 in those instances where soil conditions, water table elevation and setback provisions are deemed by Respondent to be "satisfactory."

   
   

5. While minor amendments to the rule were made March 17, 1992, the substantive content of Rule 10D-6.045(3), Florida Administrative Code, has remained virtually unchanged since February 5, 1985.

   
   

6. Two adjective modifiers in the rule, the terms "minor" and "excessive" which respectively modify the terms "deviation" and "hardship", have not been formally defined by Respondent in the rule. Respondent's rationale for this failure, as professed in the testimony of Respondent's policy representative at the final hearing, was to permit Respondent's review board maximum freedom to evaluate and consider the merit of each application for variance on an individual basis within the statutory authority of Section 385.0065(8)(a), Florida Statutes, i.e., variances may be recommended by the board where the hardship is not intentionally caused by the applicant, where no reasonable alternatives exist and where no evidence of adverse effect upon public health or ground and surface waters is demonstrated.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.56, Florida Statutes.

   
   

8. The issue for resolution in this proceeding is basically whether Rule 10D-6.045, Florida Administrative Code, is an invalid exercise of delegated authority because Rule Section 10D-6.045(3), Florida Administrative Code, contains two adjectives which may be interpreted as imposing a greater restriction upon the granting of a variance than that authorized by the legislature.

   
   

9. Rule Section 10D-6.045(3), Florida Administrative Code, attempts to restrict availability of variances through the rule's requirement that a successful applicant for a variance show "excessive" hardship requiring only a "minor" deviation from established standards. Neither term is defined by Respondent's rule.

10. Accordingly, the rule restricts exercise of Respondent's discretionary authority to specific cases where the hardship is "excessive" without defining that term and without apparent statutory authority to impose such a requirement. As such, the rule contravenes Respondent's discretionary authority contained in Section 381.0065(8)(a), Florida Statutes (1991), to grant variances in any hardship situation not intentionally caused by the applicant, provided no reasonable alternatives exist and there is no evidence of demonstrative adverse effect upon public health or ground and surface waters.

    
    

11. In the absence of additional evidence of invalidity of other portions of Rule 10D-6.045, Florida Administrative Code, it is necessary to invalidate only those offending portions of Rule Section 10D-6.045, Florida Administrative Code, which constitute an invalid exercise of legislative authority by Respondent.

Based on the foregoing, it is hereby

ORDERED that the terms "excessive" and "minor" as they respectively relate to the terms "hardship" and "deviation" constitute an invalid exercise of legislative authority by Respondent in contravention of Section 381.0065, Florida Statutes (1991), and are stricken from Rule 10D-6.045(3), Florida Administrative Code.

DONE and ORDERED this 29th day of April, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993.

ENDNOTE

1/ By way of prehearing stipulation, the parties agreed that to the extent Rule 10-6.045, Florida Administrative Code, is determined to be an invalid exercise of delegated authority, the variance issues may be addressed as incipient agency action under variance standards contained in Chapter 381, Florida Statutes.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed Findings of Petitioner.

1. Accepted.

2. Accepted with exception of second sentence which is rejected as unnecessary.

3. Rejected, unnecessary.

4.-5. Accepted.

6.-8. Rejected, unnecessary to rule proceedings. Proposed Findings of Respondent.

1.-3. Accepted.

4.-7. Rejected, unnecessary and immaterial. 11.-12. Rejected, unnecessary.

13.-16. Accepted, but not verbatim.

COPIES FURNISHED:

Sidney F. Ansbacher, Esquire Post Office Box 4548 Jacksonville, Florida 32201-4548

Charlene Peterson, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083

Amy M. Jones, Esquire Environmental Health Office Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, FL 32399-0700

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Liz Cloud, Chief

Bureau of Administrative Code The Capitol - 1802 Tallahassee, FL 32399-0250

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, FL 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 92-007443RX

Orders for Case No: 92-007443RX