STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN CHRISSIKOS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6181

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 20, 1994, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Patrick Mirk, Esquire

Post Office Box 10598 Tampa, Florida 33679-0598

For Respondent: David Jon Fischer, Esquire

Assistant District Legal Counsel Department of Health and

Rehabilitative Services 11351 Ulmerton Road

Largo, Florida 34648 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Department of Health and Rehabilitative Services (HRS), should grant the Petitioner's application, made under F.A.C. Rule 10D-6.045, for a variance from the setback from surface waters contained in F.A.C. Rule 10D-6.046(3).

PRELIMINARY STATEMENT

On or about July 15, 1993, the Petitioner, John Chrissikos, and two family members, made an application under F.A.C. Rule 10D-6.045 for a variance from the setback from surface waters contained in F.A.C. Rule 10D-6.046(3). By letter dated on or about August 10, 1994, HRS notified the Petitioner that HRS intended to deny the application.

By letter dated September 9, 1993, the Petitioner requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1993). On October 27, 1993, the matter was referred to the Division of Administrative

Hearings. A hearing officer was assigned, and a Notice of Hearing was issued on December 1, 1993, setting the final hearing for January 20, 1994, in Largo, Florida.

At the final hearing, the parties had Joint Exhibits 1, 2 and 3 admitted in evidence. Petitioner then called one witness and had Petitioner's Exhibits 1, 2 and 3 admitted in evidence. HRS called two witnesses.

At the conclusion of the presentation of the evidence, the parties ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. Neither party filed a proposed recommended order.

FINDINGS OF FACT

1. In approximately 1987, the Petitioner purchased land in Pinellas County, of which approximately 85 percent lies within jurisdictional wetlands. (The jurisdictional wetlands approximate the surface water mean high water line.) Some of the wetlands will have to be filled in order to construct a residential dwelling on the property.

   
   

2. The nearest public sewer connection is over a mile away from the Petitioner's property. The only reasonable alternative for the treatment of residential sewerage is an onsite sewage treatment and disposal system.

   
   

3. The only reasonable alternative for construction of an onsite sewage treatment and disposal system on the property would require a drainfield to be located well within 75 feet of the jurisdictional wetlands, which are surface waters of the State. In fact, the proposed drainfield would have to be as close as six to twelve feet from the jurisdictional wetlands in most places.

   
   

4. In addition, there is a drainage ditch along the road on the western boundary of the Petitioner's property. The drainage ditch contains water for extended periods of time in the rainy summer months. The drainfield for the Petitioner's proposed onsite sewage treatment and disposal system would be approximately 21 feet from the drainage ditch. In other words, a 75 foot setback from the drainage ditch would overlap the 75 foot setback from the jurisdictional wetlands.

   
   

5. Although the Petitioner's proposed onsite sewage treatment and disposal system is designed to function without failing during such conditions, parts of the drainfield can be expected to be inundated during the rainy season. In effect, as a result of rainfall and runoff during rainy weather, the water from the wetlands and the drainage ditch would be expected to overflow the jurisdictional line and the ditch banks and inundate parts of the drainfield. There would be a direct connection between the waters inundating the drainfield and the surface waters of the wetland and of the drainage ditch.

   
   

6. The Petitioner proposes to have, and several neighbors have, potable water wells to supply drinking water.

   
   

7. There are sinkholes all over the area of the Petitioner's property. It is not known whether there is a sinkhole on the Petitioner's property, but it is well known that sinkholes are common in cypress head swamps like the wetlands on the Petitioner's property. If there is a sinkhole, or if one develops, it could

   act as a direct conduit from the surface water to the aquifer from which the private drinking water wells in the area draw water. Contamination from the Petitioner's drainfield then would be able to contaminate the drinking water.

   
   

8. Potential fecal coliform contamination of the surface waters adjacent to the Petitioner's proposed drainfield (both the wetlands and the drainage ditch) also could pose a public health threat.

   
   

9. The County recently has disposed of digested sludge in the vicinity of the Petitioner's site (i.e., within approximately a mile away). (It is not clear from the evidence whether this still is taking place.) However, under applicable Department of Environmental Protection rules, the sludge was being applied to pasture at least 300 feet from cypress heads, and the County also was required to meet other environmental controls and regulations for that kind of disposal.

   
   

10. The Petitioner's evidence did not prove that discharge from his proposed onsite sewage treatment and disposal system will not adversely affect the health of the Petitioner or the public or that it will not significantly degrade the groundwater or surface waters.

    
    

    CONCLUSIONS OF LAW

    
    

11. Under Section 381.0065, Fla. Stat. (1993), Department of Health and Rehabilitative Services (HRS), has the authority to regulate the construction and operation of onsite sewage treatment and disposal systems under rules promulgated by HRS.

    
    

12. F.A.C. Rule 10D-6.046(3) provides that, except for the provisions of subsection 10D-6.046(7)(e), onsite sewage treatment and disposal systems shall not be located laterally within 75 feet of the ordinary high water line of lakes, streams, canals, marshes, or other non-tidal surface waters, including the design high water level of storm water retention areas serving two or more lots, but not including swales which are designed to not contain water 24 hours after a rainfall event. (F.A.C. Rule 10D-6.046(7)(e) reduces the surface water setback to 50 feet for lots platted prior to 1972.)

13. Both Section 381.0065(4)(g)1., Fla. Stat. (1993), and F.A.C. Rule 10D-

1. allow applications for variances from the surface water setback requirements (as well as other permit requirements for onsite sewage treatment and disposal systems.) Section 381.0065(4)(g)1., Fla. Stat. (1993), provides in pertinent part:

   
   

   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 under 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 onsite sewage treatment and disposal system will not adversely affect the health of the applicant or the public or significantly degrade the groundwater or surface waters.

Where soil conditions, water table elevation, and

setback provisions are determined by the department to be satisfactory, special consideration must be given to those lots platted before 1972.

F.A.C. Rule 10D-6.045(3) provides in pertinent part:

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.

It has been held that the words in the rule "excessive" and "minor," modifying the words "hardship" and "deviation," respectively, may be interpreted as imposing greater restrictions than granted by the Legislature and that they should be stricken from the rule. Final Order, Paul & V.M.P. Corp. v. Dept. of Health, etc., 15 F.A.L.R. 3349 (DOAH 1993).

1. In this proceeding, the Petitioner had the burden of proof and persuasion. See Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health, etc., 348 So. 2d 349 (Fla. 1st DCA 1977). It was up to the Petitioner to prove entitlement to a variance.

   
   

2. The Petitioner did not prove entitlement to a variance under Section 381.0065(4)(g)1., Fla. Stat. (1993), and F.A.C. Rule 10D-6.045(3). The Petitioner's evidence did not prove that discharge from his proposed onsite sewage treatment and disposal system will not adversely affect the health of the Petitioner or the public or that it will not significantly degrade the groundwater or surface waters.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health and Rehabilitative Services (HRS) enter a final order denying the Petitioner's application for a variance.

RECOMMENDED this 14th day of March, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 14th day of March, 1994.

COPIES FURNISHED:

R. Patrick Mirk, Esquire Post Office Box 10598 Tampa, Florida 33679-0598

David Jon Fischer, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services

11351 Ulmerton Road

Largo, Florida 34648

Robert L. Powell Agency Clerk

Department of Health and Rehabiltiative Services 1323 Winewood Blvd.

Tallahssee, Florida 32399-0700

Kim Tucker, Esquire General Counsel Department of Health and Rehabiltiative Services 1323 Winewood Blvd.

Tallahssee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department Health and Rehabilitative Services written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department Health and Rehabilitative Services concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-006181

Orders for Case No: 93-006181