DoH-o1-0s44y ~S 715 T ere es Final Order No., Date. Of . ye ke FILED - ‘gtatE OF FLORIDA Department of Health Theodore M. Henderson, Agency Clerk BALABAN-GORDON CO. OF BUOREDA/ AINCY. ” i 9 PERARTMERE OF| HEALTH AGENCY CLERK HEARINGS Petitioner, DOAH CASE NO.: 00-3884 vs. DEPARTMENT OF HEALTH, Respondent. / i FINAL ORDER THIS CAUSE is before me based upon the Joint Motion for Entry of Final Order (“Motion”). Upon careful review of the same,” the Joint Motion is hereby GRANTED. The Settlement Agreement, which was executed by the Petitioner on March 20, 2001, is adopted and. incorporated by reference. The parties are hereby ORDERED to abide by and fully comply with the terms of the Settlement Agreement. The Department’s file is hereby closed DONE and ORDERED this X= day of 2001, in Tallahassee, Leon County, Florida. ROBERT G. BROOKS, M.D. Secretary, Department of Health By: Richard G. Hunter, Ph.D. Deputy State Health Officer . NOTICE OF RIGHT TO JUDICIAL REVIEW ¥ A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED YO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE . SUCH PROCEEDINGS MAY BE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY ACCOMPANIED BY THE FILING FEES REQUIRED BY LAW WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES OR THE FIRST DISTRICH COURT OF APPEAL. THE NOTICE MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THIS FINAL ORDER. Copies Furnished to: Daniel H. Coultoff, Esquire Gronek & Latham, LLP 390 North Orange Avenue, Suite 600 Orlando, FL 32801 Carlos Marin-Rosa, Esquire Department of Health 604 Courtland Street, Ste. 170 Orlando, FL 32804 Gerald Briggs, Acting Chief Department of Health Bureau of Onsite Sewage Programs BIN AO? ; 4052 Bald Cypress Way Tallahassee, FL 32399-1713 Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building ~~" ~~ “ 1230 Apalachee Parkway | Tallahassee, FL 32399-3060 | so. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been sent by U.S. Mail, inter-office mail or by hand delivery to each of the above-named persons this ZO rk aay of Agu 2001. | Lider CAA ia : : Theodore M. Henderson Agency Clerk Department of Health Office of the General Counsel BIN A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 ph. (850) 245-4005 Fem MT STATE OF FLORIDA . ~ DIVISION OF ADMINISTRATIVE HEARINGS ARTHUR P. BALABAN, AGENT FOR BALABAN-GORDON COMPANY OF FLORIDA, INC. Petitioner, DOAH CASE NO. 00-3884 DOH CASE NO. vs. DEPARTMENT OF HEALTH, DIVISION OF ENVIRONMENTAL HEALTH Respondent ET. NTA iE WHEREAS, the undersigned parties to this Settlement Agreement desire to resolve all claims and disputes arising out of Variance Application No. 8037 and DOAH Case No. 00-3884. THEREFORE, in consideration of the mutual agreements made herein, the Parties stipulate and agree among themselves as follows: ——— Cup 1. In 1985-86 Balaban-Gordon Co. of Florida, Inc. (“Balaban-Gordon”) developed a building situated at 1400 E: Michigan St., Orlando, consisting of 16 units (the “Building”). Balaban-Gordon has indicated that these are office condo units and has produced an Orange County Building Department Certificate of Occupancy for office condos. The specific identity of tenants was unknown at the time of the application for a septic system permit. Although Balaban-Gordon and OCHD have been unable to produce the septic system permit, Balaban-Gordon has indicated that at that time the Building was marketed as office condos for medical professionals and has produced contemporaneous marketing materials for the Building. Based on evaluations of the septic system currently serving the complex and using the rules in place at the time of approval, the existing 500 square foot drain field was expected to serve a building with a design sewage flow of approximately 800 gallons per day. 2. The first buyer was a dentist, Dr. Gregg Reddish, who purchased four of the available 16 units to become his dental office. OCHD’s previous position was that the occupancy of the four (4) units by Dr. Reddish was without OCHD’s approval. The plan for Dr. Reddish’s office was not available at the time the “variance hearing was held. Recently, however, Mr. Arthur Balaban provided to the OCHD a copy of a plan that shows that the Orange County Health Department reviewed the plans for Dr. Reddish’s dental office for compliance with state health regulations and on November 25, 1986, approved the plan as revised ‘utilizing 5 non-wet dental chairs. Plan Review Control No. 1657-A. Attached please find a copy of the plan with the OCHD’s approval. The information obtained by OCHD is that Dr. Reddish uses non-wet chairs. 3. The building at 1400 E. Michigan consists of 16 units (office condo units as has been indicated by Balaban-Gordon). Of these, 4 are still owned by Balaban-Gordon and are on the market for sale. Dr. Reddish occupies another 4, a photographer, a chiropractor, a hairdresser and accountant occupy 1 unit each, a contractor occupies 2 units each, and there is 1 unit for a business office. Ms. Joyce Roberts had. purchased the other remaining unit in February 2000. H YY Page 2 Ey oir BG" 4. Ms. Roberts applied for a DOH Sperating permit for her unit at 1454 E. Michigan St. to utilize the existing OSTDS for the 1400 E. Michigan building. On June 14, 2000 the application was denied on the grounds that after a review of the existing and proposed businesses in the complex, these businesses already exceed the estimated sewage treatment capabilities of the existing onsite sewage treatment and disposal system as derived from the requirements of FAC 64E-6.008. However, it cannot be ignored that currently, the occupied units are being adequately served by the existing septic system with no visible indications of failure. Information recently obtained by the OCHD indicates that Ms. Roberts’ unit will be used for hair replacement, not as a hairdresser or beauty salon as was previously proposed by Ms. Roberts. 5. Mr. Balaban applied for a variance on behalf of Balaban-Gordon for the unsold 4 units and Ms.Roberts’ single unit to use the existing OSTDS. The OCHD recommended approval of the variance with the provisos that an operating permit be obtained and that no new high use business be allowed in the vacant spaces or in existing spaces. After conducting a hearing in August 2000 the request for variance was not approved. This was confirmed in writing on August 17, 2000. 6. Information supplied by Balaban-Gordon to the OCHD indicates that a once pending sale of the 4 units owned by Balaban-Gordon to a prospective buyer was cancelled by the buyer as soon as the application for variance was denied, and that as a result of the denial of the variance and cancellation of sale, Balaban- " Gordon lost the $100,000.00 sale price. 7. Balaban-Gordon filed a Petition for Formal Administrative Hearing and DOAH set the final hearing to be held on November 28 2000. The parties met to explore possibilities of resolving the matter without the Zoomed of an administrative hearing. This meeting resulted in a joint motion to continue the hearing after : OCHD agreed to acquire further information on sewer hook-up. Hook-up is still one (1) mile away from the Property and, therefore, unavailable. OCHD agreed to accept the maximum reasonable expansion of the drainfield without violating the rules regarding swale. The administrative law judge closed the case Og with the proviso that the matter may be set for hearing upon request to do so. 8. Conversations between the parties have continued. As a result of these conversations and field visits, Balaban-Gordon and the Condominium Association are most willing to bear the cost of the expansion of the existing drainfield. His original request for variance did not include expanding the existing drainfield. The following resolves this matter, 9. Applicant Balaban-Gordon met with OCHD along with a septic contractor known and respected by OCHD and made the following proposal: ~. Expand existing drain field area from 500 sq ft to 787.5 sqft, . Replace existing gravel drain field system with infiltrator leaching chamber, giving an equivalent of 875 sq. ft. of absorption area. . Atlow occupancy and use by Ms. Roberts of the. unit purchased in February 2000. Balaban- ’ Gordon’s four (4) units can be finished for office use, but not for high water use. Lk _:< Obtain an operating permit for the facility and provide business survey forms on each business _ operation operating in the 1400 Complex. 10. The Department finds Balaban-Gordon’s proposal acceptable. ee eee =e Cree Page 3 11. In order to resolve this matter the Parties agree as follows: a. Balaban-Gordon will expand the existing drainfield area from 500 sq. ft to 787.5 sq. ft. b. Balaban-Gordon will replace existing gravel drainfield system with infiltrator leaching chamber, giving an equivalent of 875-sq. ft. of absorption area. ¢. The Department will allow occupancy and use by Ms. Roberts of the unit purchased in February 2000 and will allow Balaban-Gordon's four (4) units to be finished for office use, but not for high water use, d. The Condominium Association will obtain an operating permit for the facility and provide business survey forms on each business operation operating in the 1400 Complex. e. The Department will allow occupancy and use of the system by all current owners of the 16 units. f. The Department will allow reasonable changes in tenancy. g. The Department will issue an operating permit for the waste water system to the condominium association. h. The Department will issue a permit for the required expansion of the drain field system as proposed by the Applicant. i. The Department will allow the Applicant to expand the drain field to final dimensions of 63 ft. in length and 12.5 ft in width, encroaching to 2.5 ft along the rear property line and to one foot along the side property line of the lot. j. The Condominium Association and Balaban-Gordon to sign necessary documents to accomplish the above. -k. The parties mutually agree not to initiate further legal action or administrative proceedings as to the denial of the variance and do hereby fully and forever release and discharge each other from all claims of any kind including damages, losses and expenses arising from the denial of the variance. 1. The parties wili move the Division of ‘Administrative Hearings to enter an order closing this case and ““gelinquishing jurisdiction back to the Department of Health for disposition by Final Order of the Department. Each party will bear its own costs, expenses and attomeys fees in this action. EHH I, 7 3" oe eee ge mame mm ge amr Page 4 m. No furtheimatters remain is dispute in this action. Er miair &” n. Enforcement of this Settlement Agreement shall be in accordance with the laws of the State of ‘a. Dewey S. DeLoach, Administrator, Orange County Health Department ’ 604 Courtland Street, Suite 200 Orlando, Florida 32804 Date. Z =, 2001. Arthur P. Balaban, as President Balaban-Gordon Company of Florida, Inc. Date 2001. Greg Reddish, as President 1400 East Michigan St, Condominium Association Orlando, Fipyida 32804 Date__3 fos 2001 Daniel H. Coultoff, Esq. Gronek & Latham, LLP. 390 North Orange Avenue, Suite 600 Orlando, Florida 32801 * Xttorney for Balaban ~Gordon Company of Florida, Inc. Date, 2001. Sgt Page 4 m. No further matters remain is dispute in this action. FLY pr "37 n. Enforcement of this Settlement Agreement shall be in accordance with the laws of the State of ida. Dewey S. DeLoach, Administrator, Orange County Health Department 604 Courtland Street, Suite 200 Orlando, Florida 32804 tthur P. Balaban, as Pr Balaban-Gordon Company of Florida, Inc. Greg Reddish, as Presideftt 1400 East Michigan St. Condominium Association 2001 enna Daniel H. Coultoff, Esq. Gronek & Latham, LLP 390 North Orange Avenue, Suite 600 Orlando, Florida 32801 : Attorney for Balaban -Gordon | Company o of Florida, Inc. Date 2001. Page 4 ; E+ Hl e®ag m. No further matters remain is dispute in this action. n. Enforcement of this Settlement Agreement shall be in accordance with the laws of the State of jorida. Dewey S. DeLoach, Administrator, Orange County Health Department 604 Courtland Street, Suite 200 Orlando, Florida 32804 Thur P. Balaban, as President Balaban-Gordon Company of Florida, Inc. Date ; 3/ B70, 1400 East Michigan ;— Association Yi Date 2001 Carlos Marin-Rose, Attorney ~ Aith Pane Dacachn rd of Health / Suite 170 . 2001 Dbaiél H. Coultoff, Esq. Gronek & Latham, [LP 390 North Orange Avenue, Suite 600 Orlando, Florida 32801 . Attorney | for Balaban -Gordon Company of Florida, Inc. Date (QO 2001. 1e’ ee ome FROM !GRONEK & LATHAM, 1 : Lup 2001,03-21 15:24 #948 P.02/03 we tee Re ea : pez tT at CFHBIT SC STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS ARTHUR P. BALABAN, AGENT FOR BALABAN-GORDON CO. OF FLORIDA, INC., Petitioner, Vv. DOAH CASE NO.: 00-3884 . DOH CASE NO.: DEPARTMENT OF HEALTH, Respondent. en, JOINT MOTION TO RELINQUISH JURISDICTION Petitioner, Arthur P. Balaban, Agent for Balaban-Gordon Company of Florida, Inc. and Respondent, Department of Health, file this Joint Motion To Relinquish Jurisdiction, as follows: LL The Division of Administrative Hearings issued an order closing file on November 20 2000, pending settlement between Petitioner and Respondent. 2. Petitioner and Respondent entered into a Settlemen: Agreement, attached hercto as Exhibit "A". 3. Petitioner and Respondent respectfully request that the Division of Administrative Hearings relinquish jurisdiction back to the Department of Health for entry ofa Final Order under the terms stated in the Settlement Agreement. rf sGRONEK & LATHAM, LLP a 2001,03-21 | 15:24 4948 P.03/03 , . Ptiraig 1” WHEREFORE, Petitioner and Respondent request the Division of Administrative Hearings to enter an order reliiquishing jurisdiction back to the Department of Health for entry ofa Final Order under the terms stated in the Settlement Agreement. Respectfully submitted, Daniel H. Coultoff, Esq. / j Florida Bar No. 994480 Gronek & Latham, LLP 390 North Orange Avenue, Suite 600 Orlando, Florida 32804 Orlando, Florida 32801 Tel..407/623-1180, ext.234 Tel: 407/481-5800 Fax 407/741-4655 Fax,: 407481-5801 Attorney for Respondent Attomeys for Petitioner ; epee:

Docket for Case No: 00-003884