The Issue The issue for consideration in the proceeding concerns whether the Petitioner is entitled to an on-site sewage disposal system (OSDS) permit or is entitled to a variance from the permitting requirements in the below-cited statutory provision and related rules, so as to be authorized to install an OSDS on his property near the Suwannee River in Dixie County, Florida. See Section 381.272, Florida Statutes, and Chapter 10D-6, Florida Administrative Code.
Findings Of Fact The Petitioner owns certain real property in Dixie County, Florida in the vicinity of the town of Suwannee. The property is more particularly described as Lot 511, Suwannee Shores III. The property is located in Section 19, Township l3 South, Range 12 East, in Dixie County. The lot is approximately 50 feet by 100 feet in size and was purchased in 1985. The Petitioner made application for an OSDS permit on March 8, 1990 for the property. The residence which the proposed system would serve consists of a heated or cooled area of approximately 24 by 34 feet. The Petitioner had an elevation of the property at the proposed installation site performed by a registered land surveyor at the behest of the Department, when he learned from the Department representative that such would be required before a permit could be granted. The Department also required the Petitioner to furnish evidence of whether the property was above or below the ten-year flood elevation. Accordingly, Petitioner's exhibit 1 establishes a benchmark elevation of 4.1 feet above main sea level (MSL) for the property and installation site. The ten-year flood elevation for the property in question is 17 feet above MSL. This is established by a report prepared by the Suwannee River Water Management District and admitted into evidence without objection, based upon records maintained by the Water Management District which contain data from the Federal Emergency Management Administration (FEMA). That data shows that for the river mile of the Suwannee River where the property is located, which is river mile 3, that the ten-year flood elevation is 17 feet above MSL. Thus, the property in question is located within the ten-year flood elevation of the Suwannee River. It is not, however, located within the regulatory floodway of the Suwannee River. Thus, the Petitioner has not established that the property is above the ten-year flood elevation for the Suwannee River. Nor have they established that a sufficient differential exists between the bottom of the proposed location of the drain field trenches and the wet season water table. In fact, Respondent's composite exhibit 1 and the testimony of Mr. Fross establishes that the wet season water table is only approximately 3 inches beneath the surface of the existing grade of the lot. The water table existing at the time of the site evaluation by Mr. Fross was only 36 inches below existing grade which would not allow sufficient differential between the bottom of the drain field trench and the water table, because less than 24 inches would separate the two planes. The results of Mr. Fross's site evaluation do show that the proper "slight limited" soils exist at the site down to a depth of 36 inches, at least where the water table existed at the time of the evaluation. It was also established that the property has a potable water supply from a central water system for the town of Suwannee and, therefore, the various set back distance related to the distance the proposed septic tank and drain field have to be separated from a potable water well or wells would not apply. These last two factors showing compliance with the portions of the rule which dictates the type of soils which must be present for such a system to be installed and the protection for potable water supplies, are insufficient to justify grant of the permit, however. The fact remains that the property is some 12.9 feet beneath the ten-year flood elevation and that it is not possible, starting from the existing grade to install a septic tank and drain field system at sufficient elevation above the water table at the present time, or the wet season water table, so that an appropriate distance for effluent to be treated in appropriate slight limited soil will exist. Finally, the Petitioner did not establish any reasonable alternatives to treatment of the effluent from the residence to be placed on the lot and thus did not establish that a means can be found to prevent the effluent from the OSDS from adversely impacting the public health or the surface or ground waters involved at the disposal site. Thus, it has not been established that any type of OSDS sought to be installed upon the lot in question would be an immaterial deviation from the permitting requirements in the statute and rules cited below. The Petitioner did not formerly apply for a variance from the permitting statute and rules. This is because the Department advised him that availing himself of the informal variance procedure would be futile because the Governor's Executive Order 90-14, entered on January 17, 1990, in the view of the Department, took away the Department's discretion to entertain variance applications and to consider whether to grant them for properties lying beneath the ten-year flood elevation of the Suwannee River. That Executive Order, in effect, directed that all OSDS's beneath the ten-year flood elevation be prohibited, by its adoption, by reference, of the Suwannee River Task Force recommendations. In any event, and somewhat parenthetically, it should be pointed out that although the Petitioner definitely will undergo a hardship if a permit or variance is not granted because of the money expended to purchase the lot, which will be largely unusable without the ability to establish a residence on it by installing an OSDS. It has not been proven by the Petitioner that no reasonable alternatives exist to the installation of a conventional OSDS subterranean- type system on the lot. Thus, one element of the variance criteria cited below has not been met nor has it been established that the installation of an OSDS would not have an adverse impact on public health and would not cause degradation of the ground or surface waters involved. Thus, to the extent the question of the Petitioner's entitlement to a variance can be entertained in this proceeding, the elements required for the grant of a variance have not been established by Petitioner's proof. It particularly has not been established that a grant of an OSDS permit or variance for such a system to be installed in this lot would not be a substantial deviation from the permitting requirements enumerated below. This is particularly true because the property is such a great distance beneath the ten-year flood elevation. In summary, in addition to the findings in the last above paragraph, it has not been established that a sufficient distance between the water table elevations and the bottom of the proposed drain field trench location will exist so as to comply with the permitting requirements in this regard so as to justify the grant of an OSDS permit nor has it been shown that the property is above the ten-year flood elevation for purposes of that permitting requirement and Rule 10D-6.47(6), Florida Administrative Code.
Recommendation It is, accordingly, RECOMMENDED: That a Final Order be entered denying the application of Marvin H. Osteen, Jr. for an OSDS permit. DONE and ENTERED this 19th day of December, 1990, in Tallahassee, Florida. P. MICHAEL RUFF 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 20th day of December, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-3115 Respondent's Proposed Findings of Fact 1-10. Accepted. COPIES FURNISHED: Marvin H. Osteen, Jr. Post Office Box 89 Suwannee, FL 32521 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 Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2014.
The Issue Should Petitioner's application for variance from the standards for onsite sewage treatment and disposal systems be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, through its local health units, is the agency in the State of Florida responsible for permitting or granting variances from permitting standards set forth in Chapter 64E-6, Florida Administrative Code, for Onsite Sewage Treatment and Disposal Systems (OSTDS). Sometime around 1970, Petitioner purchased a mobile home park (Park) in Winter Haven, Florida. The Park presently contains 68 spaces for mobile homes, all of which are occupied. The Park is situated due south of Lake Shipp. There are two canals running approximately east and west through the interior of the Park. Another canal borders the Park on the north side. Included with the purchase of the Park was a Sewage Treatment System (STS) which is permitted and regulated by the Department of Environmental Protection and is presently operating at its maximum capacity serving the 68 mobile homes located in the Park. Sometime around 1980, Petitioner purchased a parcel of land (Property) immediately north of, and across a canal (this is the canal that borders the north side of the Park) from, the Park. The Property borders a basin to Lake Shipp. The Property is zoned for mobile home usage and such is the purpose for which Petitioner purchased the Property. Petitioner has designed the Property such that it will accommodate three mobile home lots (Lots numbered 69, 70, and 71) which Petitioner intends to operate as part of the Park. Initially, Petitioner requested approval of the Department of Environmental Protection to connect the new lots to the existing STS. However, since the existing STS was already at capacity, the Department of Environmental Protection denied Petitioner's request to connect the additional three lots to that system. However, the Department of Environmental protection advised Petitioner that it would have no objection to the installation of septic tanks approved by the Department of Health to serve the additional lots. Subsequently, Petitioner proceeded to obtain the necessary approvals from the local governing authorities and a permit from the Department for the installation of septic tanks on the Property. Petitioner was successful in obtaining the necessary approvals from the local governing authorities but was not successful in obtaining a permit for the installation of septic tanks on the Property from the Department. By letter dated July 16, 1997, the Polk County Health Department denied Petitioner's Application for Onsite Sewage Treatment Disposal System Permit for the following reason: "Domestic sewage flow exceeds 10,000 gallons per day." The denial letter also advised Petitioner that she could request a variance through the Variance Review Board or request an administrative hearing pursuant to Chapter 120, Florida Statutes, on the Department's denial of her application for a permit to install septic tanks on the Property. Petitioner elected to file an application for a variance from Section 381.0065(3)(b), Florida Statutes, with the Variance Review Board. By letter dated August 7, 1997, the Department denied Petitioner's application for variance for the following reasons: The Variance Review and Advisory Committee for the Onsite Sewage Treatment and Disposal Program has recommended disapproval of your application for variance in the case of the above reference property. The granting of variances from established standards is for relieving hardships where it can be clearly shown that the public's health will not be impaired and where pollution of groundwater or surface water will not result, where no reasonable alternative exists, and where the hardship was not intentionally caused by the action of the applicant. The advisory committee's recommendation was based on the failure of the information provided to satisfy the committee that the hardship was not caused intentionally by the action of the applicant, no reasonable alternative exists for the treatment of the sewage, or the discharge from the system will not adversely affect the health of the public. I concur with the advisory committee's recommendation and hereby deny your variance request. Subsequently, Petitioner requested and was granted a formal hearing pursuant to Chapter 120, Florida Statutes, on the denial of Petitioner's application for a variance. The Petitioner intends to locate the OSTDS on the Property. The tank and drain field for the OSTDS will be located approximately 125 feet from the basin. The City of Winter Haven's Sewage System is not available to the Property. The Park's existing STS does not have adequate capacity to accept the sewage that will be generated by the Property. There is no publicly-owned or investor-owned sewage system capable of being connected to the plumbing of the Property. Petitioner testified that the estimated cost of increasing the capacity of the Park's Sewage System to accommodate service to the three additional lots was $30,000.00 - $40,000.00. However, Petitioner presented no evidence as to how the estimate was determined. The projected daily domestic sewage flow from the Property is less than 1,500 gallons per acre per day. The Property contains 1.78 acres and there will be less than four lots per acre. In a letter dated October 17, 1997, from W. R. Cover, a professional engineer with Cover Engineering, Inc., Mr. Cover expresses the following opinion: The location of these proposed mobile homes is such that a septic system will not cause adverse effects or impacts on the environment or public health. The unit will be located so as not to significantly degrade groundwater or surface waters. There is no reasonable alternative for the treatment of the sewage in view of the fact that it would be an additional financial burden to attempt to connect these units to the existing sewage treatment plant Mr. Cover did not testify at the hearing. However, the letter was received as evidence without objection from the Department. Petitioner has failed to present sufficient evidence to show that: (a) no reasonable alternative exists for the treatment of the sewage, and (b) 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 groundwater or surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health enter a final order denying Petitioner's application for variance from the requirements of Section 381.0065, Florida Statutes and Chapter 64E-6, Florida Administrative Code. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Robert G. Brooks, Secretary Department of Health 2020 Capital Circle, Southeast Bin A00 Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Robert J. Antonello, Esquire Antonello, Fegers and Cea Post Office Box 7692 Winter Haven, Florida 33883-7692 Roland Reis, Esquire Department of Health 1290 Golfview Avenue, 4th Floor Bartow, Florida 33830-0293
Findings Of Fact The property upon which Petitioner seeks a variance from the normal requirements for attaining a permit to install an on-site sewage disposal system is found in Leon County, Florida. Specifically, it is located at Lot 4, Block A, Killearn Lakes Unit I. The relative position of this lot in the subdivision is depicted within Petitioner's Exhibit 1 and Respondent's Exhibit 2 admitted into evidence. Respondent's Exhibits 3 through 5 are photographs of the site. Petitioner intends to construct a 1,200 square foot residence. As the photographs depict, some preparation has commenced to the extent of lot clearing and other site work where the home would be constructed. Killearn Lakes Unit I is a pre-1972 subdivision. When the development commenced, it was anticipated that a community sewer system would be utilized, as contemplated by the plans submitted in April, 1971. Subsequently, some lots within the Killearn Lakes Unit I were allowed to be developed with the use of on-site sewage disposal systems, namely septic tanks. There are 150 lots in that category. In 1979, with the advent of certain rules under Chapter 10D-6, Florida Administrative Code, the development was allowed to proceed on the basis of four septic tanks per acre. Over time, Killearn Lakes Unit I experienced a history of failures with on-site sewage disposal systems. The failures were promoted by problems with the "sheet flow" drainage system and its patterns of dispersion of storm water runoff, problems of soil permeability and abnormally high wet season water tables, referred to as perched water tables. This resulted in sewage backing up into homes and flowing out onto the ground in the yards of the residences, into streets and onto adjacent neighbors' lots. The problems experienced were widespread within the Killearn Lakes Unit I. This seepage of raw sewage presented a health hazard, as it would on any occasion. Among the residences confronted with this dilemma was Lot 5, Block X, adjacent to the subject lot. Persons residing in that home had to undertake alternative means of on-site sewage disposal to have that system function properly. This included relocation of the apparatus, mounding, use of an aerobic system, and use of pumps to insure that the waste being disposed did not back up into the conveniences within the home. Witnesses who appeared at the hearing described the series of corrections in some detail. Those witnesses included a former owner of that residence and others who had a technical understanding of the problems in that system. The problems in Killearn Lakes Unit I related to on-site sewage disposal systems became so extreme that the Leon County Commission declared a moratorium on the installation of on-site septic tanks in that development. This occurred in 1987. In order to better understand the problems in the Killearn Lakes subdivision, to include Killearn Lakes Unit I, a study was commissioned. That report is referred to as Killearn Lake Waste Water Disposal Study of June, 1987. A copy of the report is found as Respondent's Exhibit 6 admitted into evidence. It was prepared for the Leon County Board of County Commissioners and prepared by the Leon County Public Health Unit with the assistance of the Leon County Department of Public Works, Leon County Building Department, Ochlockonee River Soil and Water Conservation District, Northwest Florida Water Management District, Tallahassee-Leon County Planning Department, Florida Department of Health and Rehabilitative Services, and Florida Department of Environmental Regulation. Some of the highlights of that report concerned the observation that the septic tank systems do not work adequately and that the more systems that are placed the greater the problems. It noted that the nature of the drainage system in this area is a contributing factor to the failures. The soil's poor permeability, relating to the Dothan series of soils in the area which have slow permeability, contributed to the problem. Perched water tables were found above the expected levels for the wet season water tables. They also presented a problem, as did excessive slopes in some areas. In particular, it was noted that 80% of the lots sampled in Killearn Lakes Unit I had severe limitations on the use of on-site sewage disposal systems. Ninety-three per cent of the lots sampled in Block X received excess runoff from other lots and roads at higher elevations. It was noted that French or curtain drains alone would not significantly reduce perched water table complications because of the low permeability of the soils. It was reported that the overall housing density of Killearn Lakes is not particularly high, but the individual lots are small, approximately 1/4 acre in size. This, taken together with the fact that the "sheet flow" concept of storm water management contemplates that the runoff will cascade across the terrain conforming to its contours, means that some small lots will be inundated. This uncontrolled runoff contributes to septic tank problems in that the tanks fail when the soils around them become saturated. The report notes that if there was a different designed drainage system, the impact on septic tanks would be less. The report notes that if something is not done to modify storm water runoff, drainage problems will persist. Consequently, septic tank failures will continue to occur. Concerning the water tables, the soil testing, which was done in Killearn Lakes Unit I, in which the predominant soil is Dothan type, demonstrated that the borings which located mottling of the soils at the expected level of the wet season water table were inaccurate. These indicators did not correspond to reality in that the true water tables were found 12-20 inches above the expected level of the average high water, as seen in the mottling. This phenomenon was revealed in 42% of the lots evaluated which had Dothan soils. The report recommended, among other measures, that no new sewage disposal system permits be issued in Killearn Lakes Unit I until a storm water system had been constructed and demonstration made that the system would collect storm water and thereby lower the perched water table on specific lots under review. The ultimate response to the question of permits for on-site sewage disposal systems in Killearn Lakes Unit I was spoken to in a Resolution of July 14, 1987 entered by the Leon County Board of County Commissioners. A copy of the resolution may be found as Respondent's Exhibit 1 admitted into evidence. It was resolved that the permits for on-site septic disposal systems be reviewed by the Leon County Public Health Unit on a case-by-case basis in accordance with criteria announced at Chapter 10D-6, Florida Administrative Code. This effectively lifted the moratorium. The subject request for installation of an on-site sewage disposal system was reviewed in keeping with the policy decision set forth in the resolution. Respondent's Exhibit 6 admitted into evidence includes a copy of a survey made by the Homeowners' Association for Killearn Lakes, also admitted as Petitioner's Exhibit 1. As part of the study commissioned by the Leon County Board of County Commissioners, it has some relevance in portraying the dimensions of the problem. Those dimensions are better understood by resort to the color scheme which is found in Petitioner's Exhibit 1. It depicts the problem lots in red color, those lots without problems in green color, and the lots upon which no report was made in orange color, as well as vacant lots, to include the subject lot, which have no color scheme. This latter category indicates no participation in the survey. The door-to-door personal survey conducted by Rod Moeller and testified about at hearing does not diminish the impression of the seriousness of the problem with on-site sewage disposal system failures in Killearn Lakes Unit I, which the 1987 study by the Leon County Board of County Commissioners identified. This survey by Mr. Moeller was in a limited area, more specifically related to the portion of Killearn Lakes Unit I nearby the subject lot. The findings of the 1987 study commissioned by the Leon County Board of County Commissioners are accepted as accurate. Eanix Poole, Administrator of Environmental Health for the State Health Office testified at the hearing. He pointed out that the failure rate in the subdivision under question for on-site sewage disposal systems is 25%, as contrasted with the statewide rate of less than 1/2%. He identified the fact that those failures relate to backups within the home and seepage onto the ground. He verified that these events constitute health problems, especially given the number of failures. He sees the lot in question here as being particularly vulnerable to problems given the drainage patterns and its location at the bottom of two hills. The lot in question receives runoff from the two adjacent lots as well. Mr. Poole sees the subject lot as more vulnerable in the wet season and does not believe that any alternatives that are available for placement of the system on the site would sufficiently alleviate the potential failure of the system to make it a successful arrangement. What he sees is a lot in the path of a natural drainage of tremendous quantities of storm water runoff, coupled with poor soil conditions related to soil absorption or permeability in an area where on-site sewage disposal systems have failed. He remarks that dry soils are needed to treat the sewage and that treatment cannot take place in a saturated soil environment. The effects of seepage of the sewage, according to Mr. Poole, is one which can degrade ground water. Mr. Poole is also concerned that the installation of the proposed on-site sewage disposal system above ground will have an adverse impact on the adjacent lots, one of which has already experienced problems. That refers to Lot 5, Block X. These observations by Mr. Poole, as reported, are accepted. Raymond Collins, an environmental administrator with the Respondent's health program office, also testified at the hearing. He is intimately aware of the problems in Killearn Lakes Unit I. Those problems began to occur in the winter of 1986 and continued into 1987. This related to problems with toilets and the seepage of effluent which was running onto people's property and into the streets. He notes a similar failure rate in Killearn Lakes Unit I to that observed by Mr. Peel when contrasted with the experience statewide. In the aforementioned period he received calls and reports from homeowners concerning system failures. In effect what was happening was that the on-site drain fields in Killearn Lakes Unit I would not accept more input and the raw sewage would bubble up and leach out onto the ground. He personally observed a dozen sites which had failures. He was responsible for the coordination of the July, 1987 study which has been mentioned. As a result of that study one of the steps which he took was to advise that staff investigating the permit application requests should elevate the estimation of the wet season water table by 12-20 inches. Mr. Collins agrees with the recommendation of the individual who was assigned to evaluate the application for permission to install an on-site sewage disposal system at the subject lot, who recommended that the application be turned down. Mr. Collins' description of the experience at Lot 5, Block X, related to his knowledge that the initial system had been replaced with an aerobic system, which also proved to be an inadequate on-site sewage disposal system. In 1988, he went to the home of the person living on that lot, and the aerobic system was not working. There was a light rain on that day, and there were problems in the drain-field area. When a soil boring was made to a depth of two feet effluent poured out. The perched water table had risen to a point in the bottom of the drain field, such that when a hole was punched, it provided a conduit for pressure to be relieved. The drain field that was experiencing this problem was not the original drain field. It was a replacement drain field. The drain field being observed was in the front of the lot, right below the ground. The suggestion to alleviate the problem was to move the drain field to the side of the yard and elevate it and install a series of small-diameter pipes. A pump was also needed to move effluent into the drain field, thus, avoiding a backup of the system into the home. He is unaware of any recent failures in the system at Lot 5, Block X. Mr. Collins emphasized the need for soil to remain unsaturated to provide effective treatment and that 24 inches of unsaturated soil is the minimum amount which would be acceptable. Mr. Collins commented about the nature of the subject lot and the fact that other lots drain through it. Mr. Collins commented that the design of the proposed septic tank does not assure success in the treatment of the waste disposed. Unlike the expert of the Petitioner, Mr. Peel, the problem is not that solids are blocking up the system. It is the failure of the soils to accept the volume of water which is being released from the chambers of the septic tank into the drain field. Mr. Collins does not believe that the use of water-saving appliances in addition to the limited size of the home to be built on the subject lot, installation of an aerobic system, and installation of an above-ground system, as proposed, would be successful and not pose a health risk from system failure. The problems would continue to be drainage patterns and poor soils. His remarks, as reported, are accepted as accurate. Terese A. Hegg, Environmental Specialist I with the Respondent's Leon County Public Health Unit, reviewed the application for variance to install the on-site sewage disposal system. She was familiar with the history of problems in Killearn Lakes Unit I before undertaking this assignment and has made more than 50 evaluations in that development. She observed that the "sheet flow" drainage of storm water does not provide reasonable management because it does not drain normally. She is aware that the wet season water table is as much as 20 inches above the normal indicators, as seen through mottling. Her analysis of this site is under the auspices of those requirements announced in Chapter 10D-6.044, Florida Administrative Code, having in mind that the subdivision plat was made before 1972. This includes an examination of the soil characteristics, history of flooding, and water table evaluations. At this site, she noted the poor permeability of the soil. She did soil borings to confirm the nature of the soils and to identify the water table. She took into account the abnormal perched water table that is above what the mottling would indicate as being the wet season water table. Ms. Hegg is concerned that the system on the adjacent lot, which is now functioning adequately, would not function adequately if the subject system was installed. She noted that the drainage pattern from the neighboring lots was toward the subject lot and that water would come from the left and the right lots adjacent to this lot, corresponding to Lots 5 and 3 as you face them. The drainage pattern would then proceed beyond Lot 4 and into a green area. In making her assessment of this application, she was aware of the problems with the on-site sewage disposal system at Lot 5, Block X. The appearance of saturated soil in the entire length of the boring and standing water on the lot is an indication of problems with percolation. The effluent will flow out and onto the ground if these soils are saturated. From her observations and based upon the history of Killearn Lakes Unit I and its failures regarding on-site sewage disposal systems, Ms. Hegg does not believe that the proposed system would successfully address sewage treatment and would promote a risk of on-site sewage disposal system failures for adjacent lots. Ms. Hegg acknowledged that the storm water flows could be diverted; however, she points out that the subsurface water cannot be diverted. Her account of this site and the acceptability of the request for variance as reported is accepted as accurate. Given the soil conditions and the wet season water table expected at this site, the proposed system will not present an adequate unsaturated soil depth for treatment of the sewage and untreated sewage may be expected to seep or leach out onto the ground. On May 22, 1990, Mr. Collins had written to Dr. Richard G. Hunter, Assistant Health Officer for Environmental Health, recommending the denial of the variance request. A copy of that correspondence may be found as Respondent's Exhibit 7 admitted into evidence. It details reasons which are similar to those described in this Recommended Order. As a consequence, even though the Advisory Review Variance Board had looked with favor upon the request for variance, that variance was denied by action of Dr. Hunter on May 30, 1990, which relied upon the insights of Mr. Collins, as described in his May 22, 1990 correspondence. A copy of the letter of denial may be found as Respondent's Exhibit 8 admitted into evidence. The purpose of this hearing was not to examine whether Respondent had abused its discretion in denying the variance. The reason for the hearing was to allow the parties to present their points in an adversarial setting, which allowed each party to explain its viewpoint anew. That was done, and the analysis provided by this recommended order ensued. In deciding the facts, these representations have been made with due regard to the remarks of James Earl Peel, an expert in the design of on-site sewage disposal systems, who had on his staff, Gary L. Wood, P.E. His methods in analyzing the issue of the suitability of the installation of an on-site sewage disposal system at the subject site do not coincide with the methods contemplated in Chapter 10D-6, Florida Administrative Code, which controls. This is especially significant in his approaches to soil characteristics and location of the wet season water table. As noted above, his belief that the problem is one of distribution of solids from the septic tank into the drain field overlooks the more significant problem of water volume discharge from the septic tank into the drain field. In fact, Mr. Peel indicated that he is unfamiliar with the requirements of septic tank design, as described in Chapter 10D-6, Florida Administrative Code. On balance, Mr. Peel's reports, in Petitioner's Exhibits 3 and 4 admitted into evidence and his in-hearing testimony, do not persuade that the system he recommends can be successfully operated at the subject site. His presentation and the overall presentation of Petitioner do not create a reasonable expectation that the system will not fail and create health hazards for the residents of Lot 4, Block X, and others in the vicinity. It is recognized that this lot owner faces a hardship that was not caused by Petitioner. It is also recognized that, pursuant to the stipulation of the parties, there is no intention by any entity to install a community system of sewage disposal. It is further recognized that there are no alternative methods that would seem to be successful in addressing the problem of the treatment of the sewage, as related in the previous findings. On the other hand, the discharge that could be expected from this subject system would bring about a condition in which the effluent presented a health risk to this applicant and other members of the public and has the potential to significantly degrade the ground or surface waters, although this latter circumstance has not been documented on other occasions and was not found to exist in the July, 1987 study commissioned by the Leon County Board of County Commissioners. In that report, it was specifically found that the surface water had not been compromised by the on-site sewage disposal system failures described in the overall report.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered denying Petitioner's request for variance from permit requirements and permission to install an on-site sewage disposal system at Lot 4, Block X, Killearn Lakes Unit I. DONE AND ENTERED this 20th day of November, 1990, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4456 The following discussion is given concerning the proposed facts of the parties: In the discussion of the testimony of Mr. Poole, the relevant portions of that testimony are reflected in the facts found in this recommended order. Under the heading of testimony said to be attributable to Ms. Hegg, at paragraph 1, while it is recognized that a system might be installed that might not call for diversion of storm water onto adjacent neighbors' properties, the problem on site would remain and would be sufficient reason to reject the application. Moreover, it is not clear that it is the intention to install a system that would divert storm water from adjacent properties. Paragraph 2 under this heading is rejected in its notion that storm water would not have an influence on the proposed system. Paragraph 3 is rejected. Paragraphs 4 and 5 do not lead to the conclusion that sufficient unsaturated soils would be available for the treatment of disposed sewage during the wet season, nor does the representation at paragraph 6. Paragraph 7 under that heading is contrary to facts found. The paragraphs under the reference to James Earl Peel, in those five paragraphs, while accurately portraying the opinion of Mr. Peel and Mr. Wood, does not lead to the conclusion that the application should be granted. Under the heading "Rod Moeller" in the first paragraph, the information provided at hearing and under weather reports does not satisfactorily establish what the rainfall circumstance may have been at the subject property 72 hours before January 24, 1990, as referred to in paragraph 1, nor can it be said that the rain experienced in the overall area contemplated by the attached weather report to the argument by Petitioner was a 25-year storm event. The comment at paragraph 3 under this category that the on-site sewage disposal systems in neighboring lots are functioning fine since modifications in the advent of hurricane "Kate" is contrary to facts found. Under the heading "Ray Collins" in paragraph 1, this proposed fact has no relevance in that the question is the appropriate function within Killearn Lakes Unit I, not at an undisclosed site away from that area. Respondent's Facts These facts are subordinate to facts found. Copies furnished to: Sam Power, Department Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Rod Moeller, Authorized Representative Mallard Cove Construction 14261 Buckhorn Road Tallahassee, FL 32312 John L. Pearce, Esquire HRS District 2 Legal Office 2639 North Monroe Street Suite 125-A Tallahassee, FL 32399-2949
The Issue The issue is whether Petitioner's request for a variance from agency rules governing daily domestic sewage flow so as to authorize an increase in the number of seats for his restaurant located in Howey in the Hills, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, Fletcher C. Bishop, Jr., is the owner of a parcel of property located at Lot 22, Block C-2, Lakeshore Heights Subdivision, 102 South Palm Avenue, Howey in the Hills, Florida. The property consists of .0946 acre, or approximately one-tenth of an acre, and is one of several parcels located in Block C-2. Since January 1997, the property has been leased to Robert P. Jencic, who now operates a pizza restaurant on the premises known as Hungry Howies Pizza Shop. According to Jencic, he has a contract to purchase the property from Bishop at the end of his lease, or on March 1, 1998. Whether the property was actually purchased by Jencic on that date is not of record. Lakeshore Heights Subdivision is not served by a central wastewater treatment system; rather, each lot is served by a septic tank and drainfield system. Lot 22 adjoins several other commercial or business establishments situated on Lots 20, 21, 23, and 23A in the western half of Block C-2, and all share a common drainfield easement located to the rear of the lots. Except for Lot 20, all lots have tied into the drainfield and now use the easement for waste disposal purposes. Because they share a common easement, each lot has been allocated a portion of the easement for its respective septic tank and drainfield. In Petitioner's case, he has been allocated approximately 990 square feet. After Jencic signed a commitment in January 1997 to lease and purchase the property, he made extensive renovations in order to convert the property to a restaurant. On or about February 20, 1997, Jencic met with a representative of the Lake County Health Department, an agency under the direction and control of Respondent, Department of Health (Department). At that time, Jencic filed an application for a site evaluation concerning the replacement of the existing onsite sewage disposal system. The application noted that he intended to operate a pizza restaurant with 56 proposed seats. On February 21, 1997, a site evaluation was conducted by Robin Gutting, a Lake County Department of Health environmental supervisor. According to her report [t]he property size of 4120 square feet with available central water will allow a maximum 236 gallons of sewage flow per day . . . This will allow a 12 seat restaurant using single service articles and operating less than 16 hours per day. . . The size of the Onsite Sewage Treatment and Disposal System would be a minimum 900 gallon tank with 197 square feet of drainfield trench configuration. (emphasis added) Jancic received a copy of the report on or about March 12, 1997, and it clearly conveyed to him the fact that he could operate no more than 12 seats in his restaurant due to sewage flow limitations on his property. Despite being on notice that the restaurant would be limited to only 12 seats due to the lot flow restrictions, on March 19, 1997, Jencic filed an application with the Lake County Health Department for a construction permit to replace the existing septic tank with a 900 gallon septic tank, install a 900 gallon grease trap, and utilize a 197 square-foot primary drainfield and a 200 square-foot bed system. The application indicated that Jencic intended to operate a restaurant "for 12 seats, single service, open less than 16 hours per day." On May 28, 1997, Jencic's application was approved for "12 seats, single service, open less than 16 hours per day." After installing the new tank and grease trap, Jencic began restaurant operations subject to the above restrictions. After operating his pizza restaurant for a short period of time, Jencic determined that he could generate a profit only if the restaurant could be expanded to allow more seats, and he could use china and silverware (full service articles) rather than single service articles (throwaway utensils). To do this, however, he would need a larger sewage treatment system. By letter dated November 9, 1997, Jencic requested a variance from various Department standards for onsite sewage treatment and disposal systems so as to "increase the seating from 12 seats to a maximum of 36 seats and [authorize] the use of china, silverware, and dishes." Although the letter does not refer to any rules, the Department has treated the letter as seeking a variance from three of its rules found in Part I, Chapter 64E-6, Florida Administrative Code. First, Rule 64E-6.001(4)(c), Florida Administrative Code, provides that an establishment cannot exceed the lot flow allowances authorized under Rule 64E-6.005(7)(c), Florida Administrative Code. If the seating capacity in the restaurant were increased, Jencic would exceed the lot flow allowances in violation of this rule. Second, Rule 64E-6.005(7)(b), Florida Administrative Code, prescribes the manner in which a determination of lot densities shall be made. Among other things, daily sewage flow cannot exceed an average of 2,500 gallons per day per acre. The easement which Petitioner shares with other lots is far less than an acre, even counting the space allocated to the adjoining lots. Finally, Rule 64E-6.008(1), Florida Administrative Code, provides that minimum design flows for systems serving a structure shall be based on the estimated daily sewage flow as determined by Table I of the rule. That table specifies an estimated daily sewage flow of 20 gallons per seat for restaurants using single service articles only and operating less than 16 hours per day. Therefore, a 12-seat restaurant with those operating characteristics would require a system that could handle at least 240 gallons of sewage flow per day. The table further provides that a restaurant operating 16 hours or less per day with full service will generate an estimated sewage flow of 40 gallons per seat. Thus, a restaurant with up to 36 seats, as Jencic has requested, would require a system handling at least 1,440 gallons of sewage flow per day. In order to qualify for a variance, an applicant must show that (a) the hardship was not caused intentionally by the action of the applicant; (b) no reasonable alternative exists for the treatment of the sewage; and (c) the discharge from the onsite sewage treatment and disposal system will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. In its letter denying the variance, the Department asserts that Jancic has failed to show that items (a) and (c) have been satisfied. Jencic, who recently immigrated to this country, will suffer considerable financial hardship if the request for a variance is denied. Indeed, he demonstrated at hearing that his life savings have been invested in the restaurant, and his parents have placed a substantial mortgage on their property to assist him in his endeavor. If he does not purchase the property as required by his contract, he will be forced to restore the property to its original condition at great expense. In short, given his investment in renovations and equipment, unless the restaurant is expanded, he fears he must file for bankruptcy. Both parties agree that Jancic will suffer a hardship if the variance is not approved. However, Jancic was aware of the lot flow limitations before he made application to replace the existing septic tank in March 1997, and well before he began operating the restaurant in May 1997. Unfortunately, then, it must be found that the hardship was intentionally created by Jencic's own actions. If the variance were approved, it would result in a much larger amount of sewage being discharged into the easement, which could not handle that amount of flow. This in turn could cause the system to fail, thus creating a sanitary nuisance and the leaching of sewage into the groundwater. In this respect, Jancic has failed to show that the discharge will not adversely affect the health of the applicant or significantly degrade the groundwater or surface waters. Jencic offered into evidence a summary of his water usage during a representative period in 1997. That document indicated that metered water usage was approximately 3,000 to 4,000 gallons per month, even when he temporarily (and without authority) expanded his restaurant to 24 seats during a recent two-month period to test water consumption at the higher seating capacity. However, because the sewage strength of a restaurant is far greater than that of a residence, a sewage system must be sized on estimated waste flow, and not metered water flow rates. Therefore, the fact that Jancic's monthly metered water usage is less than 4,000 gallons is not relevant to a determination of the issues. The same finding must be made with respect to Jancic's well-intentioned efforts to decrease water flow by installing high pressure toilets and timed spring systems on his hand sinks. Jencic also requested that he be allowed "spike time" during the hours of 11:30 a.m. to 1:00 p.m. and 6:00 p.m. to 7:30 p.m., which are his peak hours of the day. In other words, the undersigned assumes that he is asking that consideration be given to the fact that he has virtually no business during the other hours of the working day, and that the flow during the peak hours alone would not be excessive on a daily basis. However, the Department's rules are calculated to maximum usage, and thus a "spike" allowance is not allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying Petitioner's request for a variance. DONE AND ENTERED this 11th day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1998. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Jencic 102 South Palm Avenue Howey in the Hills, Florida 34737 Marya Reynolds Latson, Esquire Post Office Box 2408 Ocala, Florida 34478 James Hardin Peterson, III, Esquire Department of Health Building 6, Room 102 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent should be required to obtain a current operating permit for his aerobic treatment unit and have a $500.00 fine imposed for violating an agency rule for the reason cited in the Citation for Violation issued by Petitioner on December 1, 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Petitioner, Department of Health (Department), has alleged that Respondent, Dr. Anthony Massaro, a retired public health physician, failed to obtain an annual operating permit for an aerobic treatment unit (ATU) located at his residence at 3402 North Oceanside Boulevard, Flagler Beach, Florida. The Flagler County Health Department (Health Department) is charged with the responsibility of issuing such permits. That department is under the direction and control of Petitioner. While Respondent readily admits that he failed to obtain a permit, he contends that he was misled by the Health Department when he first installed an ATU at his residence; the Health Department is not enforcing the law regarding ATUs and thus another system would be more appropriate; and the law, as he interprets it, allows him to install another type of on-site sewage disposal unit on his property. Respondent purchased his property in Flagler County in 1997. The property is located in Ocean View Estates Subdivision (subdivision), which has an Urban Single-Family Residential District (R-1b) zoning classification under the Flagler County Land Development Code (Code). Section 3.03.05A of the Code requires that owners within the R-1b classification use "public or community water and sewer facilities," but makes an exception for "[s]mall R-1b subdivisions, fifty (50) lots or less, utilizing a public community water system," in which case residents "may utilize Class I aerobic onsite sewage disposal systems." Further, "[t]he use of individual onsite sewage disposal systems must be consistent with adopted county policies and standards." Because the subdivision has 50 lots or less, and public or private sewer facilities were not available in the area, the subdivision's Plat Agreement recorded in 1995 provided that "[i]ndividual aerobic onsite sewage disposal systems are to be permitted and constructed as each lot is developed." Another type of onsite sewage disposal system is the anerobic system, which has a septic tank and larger drainfield, is far less expensive, but does not conform with "county policies and standards" in this locale. Thus, this type of system requires a variance from the zoning regulations before one can be installed in the subdivision. Even so, Respondent says "all" of his neighbors have installed such a system. Because of the Plat Agreement, the zoning restriction, the difficulty in obtaining a variance, and the lack of a sewer line, Respondent had no choice except to use an ATU system for his residence. This meant that he had to apply for a permit from the Health Department. Once a permit is obtained and an ATU installed, the owner must renew his operating permit annually at a cost of $150.00, and he must enter into a maintenance agreement with a licensed contractor. The $150.00 fee is used to defray the costs incurred by the Health Department in making quarterly inspections and performing annual sampling and laboratory analysis of effluent. The record does not reflect precisely when a sewer line became operational across the street from Respondent's property, but the sewer project was accepted "for service" in April 1998, or before Respondent's ATU was installed in August 1998. Had Respondent known this, he would have obviously chosen that option rather than an ATU. The evidence reflects that in November 1997 Respondent made application for an ATU with the Health Department, a permit was issued in December 1997, and the system was installed and approved in August and September 1998, respectively. In early April 1998, the Health Department was advised by the private utility company that it would accept new sewer connections in a service area that included Respondent's home. However, Health Department representatives made no mention of this to Respondent since they were under the impression that he desired to use the ATU option, they do not normally "counsel" applicants on onsite sewage disposal system options, and Respondent had made no inquiry. Disclosure of this fact would have saved Respondent considerable money (and grief) in the long run; unfortunately, however, while good public relations would dictate otherwise, the Health Department had no legal obligation to do anything other than process the pending application. Likewise, it has no obligation in law to now pay the costs for Respondent to hook up to the line because of its non-disclosure. Respondent has now invested more than $5,000.00 in his ATU. This type of system is operated by a compressor in Respondent's garage, which must be run 24 hours per day, and is very noisy. Because of this, Respondent understandably wishes to change to an anerobic system, which has a traditional septic tank, larger drainfield, no unsightly "mound" in the yard, no annual permits, and is far cheaper than an ATU. Also, it does not require a noisy motor to sustain operations. However, this type of system is prohibited by the Code except where a variance from Flagler County (County) has been obtained. It appears to be unlikely that Respondent can obtain a variance from the County. Because Respondent's property is so low in relation to the sewer line, to achieve the proper gravity, he must install a lift station and pay a connection fee, both totaling $3,540.00, before hooking up to the sewer system. Given these costs, and the considerable investment he already has in an ATU, Respondent does not consider this to be a viable alternative. Respondent pointed out that, despite the requirement that they do so, many ATU owners in the County are not running their systems 24-hours per day because of the noise from the compressor. He also pointed out that the Health Department has consistently found numerous violations of such systems during its inspections. He further asserted that while the $150.00 annual fee is to defray certain sampling and laboratory analysis costs associated with inspecting ATUs, the Health Department has done neither on his ATU. Finally, Respondent pointed out that prior to 1999 the regulations were enforced by sampling the compliance of a very small percentage of total ATU systems (ten percent), rather than all systems, in the County. Given these considerations, Respondent concludes that ATUs are the least effective way to treat sewage, and that existing laws and regulations have not been enforced. Assuming these allegations to be true, and they were not seriously disputed, they are legitimate concerns. However, until the law is changed, they do not constitute a lawful basis for allowing Respondent to switch to an anerobic system. Respondent further contended that under his interpretation of the general law, which was not fully understood by the undersigned, he is not required to use an ATU. But local zoning regulations clearly require that he do so, and until the state or local regulations are changed or waived, he cannot use an anerobic system. Finally, Respondent has cooperated with the Department throughout this process. With his lengthy public health background, Respondent initiated this action with good intentions, seeking to point out the flaws in the ATU systems, and to remedy a problem which none of his neighbors apparently have. Given these considerations, a civil penalty should not be imposed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order sustaining the charge in the Citation for Violation and requiring that Respondent obtain an annual permit for his ATU. A civil penalty is not warranted. DONE AND ENTERED this 20th day of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Charlene J. Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Dr. Anthony Massaro 3402 North Oceanside Boulevard Flagler Beach, Florida 32136 Amy M. Jones, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue Whether Respondents' Division of Hotel and Restaurants' license should be suspended or revoked, or a civil penalty assessed for alleged violation of Division Rule 7C-4.01(5)(c) and Florida Statute s. 509.221, as set forth in Notice to Show Cause issued by the Petitioner.
Findings Of Fact On April 19, 1977, Johnny Bell, inspector for petitioner's Division of Hotels and Restaurants, received notification from the Health Department of Sarasota County that respondents' place of business, Port-of-Call, resort apartments located at Longboat Key, Florida, was not connected to the sewerage system of Longboat Key. Bell inspected respondents' premises and discovered that a septic tank system was in use at the Port-of-Call. He informed respondents that they must connect to an "approved" sewerage system within sixty (60) days. On June 20, 1977, Bell returned to the premises and found that no action had been taken to connect to the Longboat Key system. Respondent Edward W. Henderson informed him that he should not have to go on such a system because his septic tanks were adequate and functioning properly. Bell did not examine the septic tanks or ascertain if they were, in fact, in proper condition and operating satisfactorily. He proceeded to issue a Notice to Show Cause as to why respondents' license No. 68-606H should not have a civil penalty assessed against it or be suspended or revoked. The stated cause for such intended action was as follows: "Division Rule 7C-4.01(5)(c) ; Florida Statutes 509.221 -- Failure to have sewage system hooked into public sewerage system." The Notice to Show Cause also informed respondents of their right to an Administrative Hearing under Chapter 120, Florida Statutes. Respondents thereafter requested such a hearing. There is no food operation at the Port-of- Call. (Testimony of Bell, Exhibit 1)
Recommendation That the charges against respondents be dismissed. Done and Entered this 10th day of October, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence C. Winson, Esquire Department of Business Regulation The Johns Building, Suite 210 725 South Bronough Street Tallahassee, Florida 32304 John W. Meshad, Esquire 100 South Washington Boulevard Sarasota, Florida 33577
The Issue Whether the Petitioner's request for variance should be granted.
Findings Of Fact Petitioner owns a parcel of land in Palm Beach, County on which is housed Petitioner's paving and landscapping business and which is zoned for industrial use. Petitioner intends to install a manufactured building for use as an office. To provide sewage treatment for the bathroom of the office, Petitioner had a septic tank designed and applied for a septic tank permit which was denied as was its variance request. As a result of a complaint, Petitioner was inspected in August, 1988, by the Palm Beach County Department of Environmental Resources Management and by the Florida Department of Environmental Regulation. Both inspections yielded citiations for soil contamination by oil and other hazardous waste. Petitioner represented that most of the infractions had been rectified by the date of the hearing in this matter and pledged full cooperation with the County and State rules. To oversee the operation of the business and assure that no further problems arose, Petitioner decided to establish its office on site. The closest sewage treatment plant is at full capacity and does not intend to provide service to the parcel in the near future. The adjoining properties are serviced by septic tanks. As such, the proof did not demonstrate that alternative methods of waste disposal were available to the site However, as part of its business operation, Petitioner does minor repair of its equipment on site and may include oil changes and other such services. Although Petitioner does not intend to pollute the groundwater and intends to use the proposed septic tank for office use only, the proof demonstrated that waste disposal into a septic tank from the maintenance and repair of its equipment could result in the disposition of prohibited hazardous waste into the groundwater. Further, the proof failed to demonstrate that the septic tank would be protected from use by those who handled the hazardous waste. Although the hardship, if any, caused by the denial of the variance was not caused by Petitioner and the proof failed to demonstrate reasonable alternatives of waste disposal, the potential for an adverse affect of the operation to the groundwater is great. Additionally, the proof failed to establish the ameliorating conditions of soil, water table or setback conditions or whether the property was platted prior to 1972. Accordingly, the denial of the variance was proper.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of July 1989. JANE C. HAYMAN 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 6th day of July 1989. COPIES FURNISHED: Hattie Parker 160 Toneypenna Drive Jupiter, Florida 33468 Peggy G. Miller, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The applicant, Island Village Condominiums, prepared and submitted to the Department of Environmental Regulation a completed application for construction of its extended aeration sewage treatment plant. The relative distance and direction from the proposed treatment plant to major bodies of surrounding surface water are depicted in an aerial photograph which accompanied the application. The elevation of the surrounding waters in all directions is 39 feet. When the treatment plant is operated in compliance with its design features, the effluent from the plant will exceed the Department's standards for effluent discharge. The zone of discharge will be confined to the owners' property. Surface waters will not be involved in discharge. There will be no adverse impact upon ground waters. The treatment plant would not create a hazzard to the deep water wells of Point O' Woods Utilities, Inc. The treatment plant, as designed, meets or exceeds the engineering standards established by the Department. The likelihood of geologic subsurface failure is remote. Ground water levels are included on the schematic plan which accompanied the application to the Department. The tops of the holding ponds are above the 100-year flood level. The treatment plant will produce no noticeable odor. No exterior lights are to be used with the plant. The noise from the plant's operation would not travel more than 200 feet. The holding ponds would be more than 120 feet from the nearest surface water. The estimate of the cost is accurate at $98,000. Martin I. Gunn, Inc., is the developer of the property, which is also owned by the corporation, Island Village Condominiums, also known as Island Village of Inverness. The treatment plant will become the property of the home owners association and will be operated by the association from maintenance fees paid by the home owners. Martin I. Gunn/Island Village is not a public utility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the permit for the construction and operation of an extended aeration sewage treatment plant be issued to Island Village Condominiums subject to the general and specific conditions stated in the Department's original notice. DONE and ORDERED this 19th day of February, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1982. COPIES FURNISHED: Thomas V. Infantino, Esquire Post Office Drawer. B Winter Park, Florida 32790 Donald F. Perrin, Esquire New Bank of Inverness Building Highway 41, South Post Office Box 1533 Inverness, Florida 32650 William W. Deane, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria J. Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
