STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE-LENNIE DEVELOPMENTAL )

LEARNING CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4143

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on February 12, 1997, in Jacksonville, Florida before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Maxie Broome, Jr., Esquire

Williams and Broome, P.A.

4161 Carmichael Avenue, Suite 208

Jacksonville, Florida 32207

For Respondent: Roger Williams, Esquire

District Four Legal Office Department of Health and

Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent should deny the request for an increase in licensed capacity, from 12 to 65 children, because Petitioner's septic system is inadequate for the increased capacity.

PRELIMINARY STATEMENT

By letter dated March 4, 1992, Respondent advised Petitioner that Petitioner's request for increased capacity was denied.

Petitioner timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted 12 exhibits for admission in evidence.

Respondent called one witness and submitted no exhibits for admission in evidence. The identity of the exhibits, and the rulings concerning each, are set forth in the transcript of the hearing filed with the undersigned on March 28, 1997.

Petitioner timely filed its proposed recommended order ("PRO") on April 7, 1997. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is a child care facility licensed for 12 children in accordance with relevant provisions in Chapter 402, Florida Statutes.1 Petitioner seeks to increase its licensed capacity from 12 to 65 children.

2. Respondent is the state agency responsible for licensing child care facilities. Respondent stipulates that Petitioner satisfies all relevant licensing requirements except those pertaining to the capacity of the septic system at the facility.

3. The child care facility is on the same property and is part of the O'Neal Memorial Baptist Church. The church has 25 members and shares the same septic system.

4. Respondent is statutorily required to enforce minimum standards for licensing child care facilities, including

   standards for the health, sanitation, and safety of the children. Respondent did not delegate its statutory authority to a local governmental agency. The local governmental agency did not exercise licensing authority over Petitioner.

5. Respondent properly relied on the Nassau County Health Department (the "Health Department") to determine whether the existing septic system is adequate for 65 children. Since 1990, the Health Department has performed local inspections for Respondent pursuant to Florida Administrative Code Rule 10D-6,2 Chapter 386, and valid inter-agency agreements.3

6. The Health Department properly determined that the current septic system is adequate for only 12 children. The Health Department correctly applied the formula prescribed in Rule 10D-6, including Rules 10D-6.048 and 10D-6.049.

7. The capacity of a septic system is determined by flow rates prescribed by rule, the size and design of the septic tank, the type and size of the drainfield, and soil conditions. The current system consists of a 1200 gallon tank, a mound drainfield of 287 square feet, and adverse soil conditions.4

8. Flow rates are not limited to toilet flushes. Flow rates include toilet flushes, kitchen use, hand washing, and any other demand on the septic system.

9. The flow rates prescribed by rule are 3 gallons for each member of the church, 10 gallons for each child, and 15 gallons for each worker in the child care facility. The current facility has three workers for 12 children.

10. The facility serves food to the children. The flow rate prescribe for children must be increased by four gallons whenever food is served.

11. The total flow for the existing capacity of the facility is 363 gallons. Church members produce a total flow of

    150 gallons. Children and workers, respectively, produce a total flow of 168 and 45 gallons.

12. The existing septic system is more than adequate for an a total flow of 363 gallons. A 900 gallon tank is the smallest tank allowed by rule for a total flow of 0-300 gallons. A 1050 gallon tank is the smallest tank allowed for a total flow of 301-

    400 gallons. The existing 1200 gallon tank is more than adequate for 12 children and 50 church members.

13. The evidence did not establish whether the existing 1200 gallon tank is a single compartment tank. A 1200 gallon single compartment tank, by rule, will accommodate 401 to 500 gallons of total flow. If the existing tank is a single compartment tank, it is more than adequate for 12 children.

14. Petitioner argues that the actual membership of the church is only 25 and not 50. Even if the actual membership is 50, the existing septic system is adequate.

15. The existing septic system is not adequate for 65 children with a total flow of 910 gallons. Assuming the number of workers would increase to 5 and that there are only 25 church members, the total flow for workers and members, respectively, would be 150 gallons. Total flow would be 1060 gallons.

16. A 2200 gallon tank is the smallest tank allowed by rule for a total flow of 1060 gallons. The current 1200 gallon tank does not comply with applicable rules and is inadequate for a total flow of 1060 gallons.

17. Even if the existing tank were designed as a single compartment tank, it would not be adequate for 65 children. A 1200 gallon single compartment tank is adequate for a total flow of only 401 to 500 gallons.

18. Petitioner argues that the church members use the septic system on the weekends when the child care facility is not in operation. Petitioner argues that the flow rates for church members should be excluded from total flow when determining capacity of the existing system.

19. Petitioner's argument is not dispositive even if it were correct. Even if 50 church members were excluded, total flow is 910 gallons. The maximum flow prescribed by rule for a 1200 gallon single compartment tank is 401-500 gallons.

20. The inadequacy of the current septic system is exacerbated by the paucity of the existing drainfield. The smallest tank allowed by rule for the projected total flow of 1060 gallons is a 2200 gallon tank. However, a 2200 gallon tank is allowed only if it is used with a drainfield of 1,746 square feet. Petitioner's drainfield is only 287 square feet.

21. Petitioner's drainfield is a mound. A mound has less capacity than an in-ground drainfield due to differences in loading rates. Moreover, soil conditions surrounding the drainfield further reduce its capacity.

22. Petitioner can obtain the desired licensing capacity if it increases the capacity of the current septic system. Petitioner would need to obtain a repair permit to redesign the drainfield, increase its area, increase the size of the septic tank, or to perform all of the foregoing repairs.

    CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

24. The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that it is entitled to be licensed as a child care facility for 65 children. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

25. Petitioner failed to satisfy its burden of proof. Petitioner failed to provide evidence demonstrating that the existing septic system is adequate for 65 children even if no church members are included in the calculations and even if the existing septic tank is a single compartment tank.

26. The only evidence of the capacity of the existing system was evidence of its incapacity. That evidence was credible and persuasive.

27. Petitioner relied on arguments that were not supported by evidence. Even if the arguments were valid, they are immaterial because they lead to conclusions that are not dispositive of the issues.

28. The primary argument asserted by Petitioner was that Respondent improperly delegated its licensing authority and responsibility to a local agency. That argument is rejected as not supported by the evidence or the law. Respondent failed to cite any legal authority to support its argument.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent enter a Final Order and therein

DENY Petitioner's application for a license for 65 children.

DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ All references to rules are to rules promulgated in the Florida Administrative Code published as of the date of this Recommended Order.

3/ The Health Department is a state agency. When the initial inspection of the septic system was completed in 1990, the Health Department was part of the same state agency as the licensing agency. The licensing agency was the Department of Health and Rehabilitative Services.

The licensing agency is now the Department of Children and Family Services. The Health Department has conducted annual inspections from 1990 through 1996.

4/ The exact size of the septic tank was not determined by the evidence. Petitioner's witness stated that the tank is an 1100 gallon tank. The representative of the Health Department testified that no one manufactures an 1100 gallon tank and that the tank must be either a 900\300 combo, a 1050, or an 1100 gallon tank.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Maxie Broome, Jr., Esquire Williams & Broome, P.A.

4161 Carmichael Avenue, Suite 208

Jacksonville, Florida 32207

Roger Williams, Esquire District Four Legal Office

Department of Children and Families Post Office Box 2417

Jacksonville, Florida 32231

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004143

Orders for Case No: 96-004143