00-003445 Adele Sellers vs. Department Of Health, Division Of Environmental Health Status: Closed Recommended Order on Monday, February 12, 2001.

Summary: Twelve-month variance with provisos granted upon financial hardship. Test is whether perpetual use of the variance could, combined with all the other factors present, contribute to surface water degradation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADELE SELLERS, )

)

Petitioner, )

)

vs. ) Case No. 00-3445

)

DEPARTMENT OF HEALTH, )

DIVISION OF ENVIRONMENTAL )

HEALTH, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed-fact

hearing on November 30, 2000, and December 11, 2000, in

Pensacola, Florida, before the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Ella Jane P. Davis.

APPEARANCES

For Petitioner: Steven E. Melei, Esquire

3603 Mobile Highway

Pensacola, Florida 32505

For Respondent: Rodney Johnson, Esquire

Department of Health

1295 West Fairfield Drive

Pensacola, Florida 32 501

STATEMENT OF THE ISSUE

Whether Petitioner may be granted a variance from Rule

64E-6.001(4), Florida Administrative Code, pursuant to Section

381.0065(4)(h)1., Florida Statutes.

PRELIMINARY STATEMENT

Petitioner was denied a variance for an on-site sewage

treatment and disposal system (OSTDS). The case was referred to

the Division of Administrative Hearings on or about August 15,

2000. The disputed-fact hearing was initially convened for one

day on November 20, 2000.

At commencement of the hearing, Petitioner presented and

argued her Motion in Limine which prayed that the issues of

"hardship" and whether Petitioner had authority to represent the

property owner be excluded from the hearing. The motion was

denied, and Petitioner was required to go forward, bearing the

burden of proof as to all elements of Section 381.0065(4)(h)1.,

Florida Statutes.

Petitioner also filed, in open court, a trial brief.

The case was not concluded on November 30, 2000. With the

parties' agreement, the cause was continued to December 11,

2000, when the taking of all evidence was completed.

Petitioner testified on her own behalf and presented the

oral testimony of James W. King, Jr., Agnes Nelson, Joe Nelson,

Michael James Jones, Martin MacAndrew, Jim McDaniel,

Alma C. Moreno, Charles Barcia, and Melissa Tidman. She had

15 exhibits admitted in evidence.

Respondent Department of Health (Department) presented the

oral testimony of Denise Williams Powell, Antonio (Tony) Moreno,

Steven A. Burgess, Cheryl N. Bunch, Richard W. Stone, Joseph

Scott Hale, Wesley Steven Greene, and Dr. Malcolm Shields.

Respondent had eleven exhibits admitted. Respondent's Exhibit

10, one page of tidal information, was not admitted, but a

limited proffer was permitted.

The parties' stipulations have been included in this

Recommended Order, but not verbatim.

A complete transcript for the fifteen-and-a-quarter hour

hearing, spanning two days, twelve days apart, was not offered.

The undersigned declined to accept the offer of a transcription

of the testimony of only one of Respondent's witnesses,

Dr. Shields.

Each party filed a Proposed Recommended Order, each of

which has been considered.

FINDINGS OF FACT

1. Tony and Alma Moreno are owners of the building and

premises located at 8250 Scenic Highway, Pensacola. They own

the real property at that location all the way to road frontage

right-of-way at Scenic Highway.

2. The building had been in continuous existence in the

same location for twenty or more years before Petitioner became

connected with it. During that period of time, except for short

hiatuses, either the Morenos or their lessees operated it as a

licensed bar, most often under the name, "The Lighthouse

Tavern."

3. Sewage lines exist in the right-of-way at Scenic

Highway, within 400 feet of the premises. The tavern is

equipped with a septic tank. There has never been any history

of septic problems on the tavern premises.

4. The Lighthouse Tavern has always been a neighborhood

bar of limited success. Martin MacAndrews has been putting

amusement games in the tavern since 1978. He testified that

during those twenty-two years, the average number of patrons has

been eight to 14. Jim McDaniel has sold paper products to

successive lessees since the 1970's. He has seen an average of

10 patrons during the day and up to 20 patrons at night.

Charles Barcia, a more recent patron, has observed a maximum of

nine patrons in the tavern.

5. Denise Powell ( nee ´ Williams) leased the premises from

August 7, 1998, until approximately September 28, 1998, during

which time she operated the Lighthouse Tavern. She had

approximately ten customers per day, used plastic barware, and

had no septic problems. During the month or so she operated the

tavern, she did not have the septic tank pumped.

6. Ms . Powell's lease with the Morenos was not due to

expire until July 31, 1999. However, on or about September 28,

1998, Hurricane Georges damaged the Lighthouse Tavern and

wreaked destruction on Pensacola and much of the Florida

Panhandle. The area was declared both a state and federal

"disaster area."

7. Ms. Powell immediately notified the Morenos, and they

cancelled the lease by mutual agreement, because the premises

were uninhabitable due to substantial water damage.

8. Ms. Powell testified that but for Hurricane Georges,

she would have continuously operated the Lighthouse Tavern under

the terms of her lease from the Morenos. As it was, she

abandoned the lease and the property.

9. The Morenos made no repairs to the building. No

commercial activity, as a tavern or otherwise, occurred on the

subject property from September 28, 1998, through May 1, 2000,

approximately a year-and-a-half.

10. City water service to the property was terminated from

October 12, 1998 until April 7, 2000.

11. On Apri l 5, 2000, Petitioner, a widowed mother,

applied to Escambia County for an occupational license to run a

tavern at that location.

12. On or about April 7, 2000, Petitioner negotiated a new

lease with the Morenos. It involved rate and terms favorable to

Petitioner in exchange for her substantial investment

(approximately $35,000, as of the date of hearing) in renovating

the Lighthouse Tavern.

13. Among other renovations to the property, Petitioner

has replaced the tavern's back wall and outside deck, added two

pool tables, coolers, two complete bathrooms, a three

compartment sink, and a handwash sink. Very few of the

fixtures, etc. are removable, let alone subject to resale.

14. A five-year lease, Exhibit P-2, was executed on May 1,

2000. It limits Petitioner's use of the property to use as a

tavern, so she cannot get her renovation money back by

converting to another business. Paragraph 21 of the lease,

purporting to be a lease/purchase option, has not been filled-

out, so Petitioner's option to purchase the property is

potentially unenforceable.

15. Current Florida Administrative Code rules require

septic tanks to have a minimum capacity of 1050 gallons, a

filter, and a baffle. A baffle is a device to keep water and

waste from going into the drainfields.

16. On May 15, 2000, Ensley Septic Tank Service, operated

by Agnes and Joe Nelson, pumped, inspected, and certified the

existing septic tank as structurally sound.

17. However, the existing septic tank is twenty years old

and provides only 750 gallons. It is not baffled and does not

have a filter. Its two drainfields are 75 feet and 69 feet,

respectively, from the waterfront, whereas by Escambia County

Ordinance, the current setback requirement is 100 feet.

18. On May 25, 2000, the Department denied Petitioner a

permit to utilize the existing septic tank, based on the

contents of her application, which stated that the tavern

occupancy would be 75 seats. Departmental analysis showed that

75 patrons would result in 1,000 gallons per day usage. The

existing septic tank does not have that capacity.

19. Before the execution of the lease, Petitioner made no

inquiries of Respondent Agency. Likewise, no one told her

before the execution of the lease that she would not be able to

utilize the existing septic tank or use the premises for a

tavern. Rather, Petitioner relied on her own interpretation of

an Escambia County Ordinance providing additional time to meet

County regulations for reopening a business (or nonconforming

use) after closing the business due to Acts of God, and on the

fact that Denise Powell's lease, by its terms, did not expire

until July 31, 1999.

20. When she was denied a permit to use the existing

system, Petitioner applied for a variance for 75 patrons.

Petitioner also filed a second application for variance and

requested 24 patron occupancy.

21. Petitioner went before the Department's Variance

Review Board, which recommended granting the variance with the

provisos offered by Petitioner.

22. However, on July 18, 2000, the Department denied the

requested variance, stating that the information provided by

Petitioner failed to show that no reasonable alternative exists

for the treatment of the sewage or that the discharge from the

septic tank will not significantly degrade the groundwater or

surface waters. The Department offered to permit the tavern to

operate either with a connection to the existing sewer system or

with a septic tank that meets the current requirements of the

Florida Administrative Code.

23. At hearing, Petitioner established that the tavern's

water bills from 1996 to 1998 show a use of only 430 to

588 gallons of water per month. This amount reflects the low

number of 10-20 patrons per day during that period of time (See

Finding of Fact 4), but it also is only approximately three-

quarters of the capacity of the existing septic tank.

24. At hearing, Petitioner offered the following

cumulative provisos to reduce water flow to the system: limit

tavern hours to 11:00 a.m. to 2:00 a.m. (15 hours) daily; use

plastic or paper cups; not serve food or mixed drinks; restrict

beverages to beer and wine; and limit occupancy to 24 patrons.

She offered to pump the existing septic tank more frequently and

provide "port-a-potties," as needed. Petitioner anticipates

using 24 seats inside, plus picnic tables on the deck. She

offered to eliminate the outside seating. The deck constitutes

one-quarter of the 900 square feet of the establishment. She

will upgrade the septic system as her income from operating the

tavern recoups her investment. She will close-up and terminate

her lease if she cannot bring the premises "up to Code," that

is, to meet the current Florida Administrative Code requirements

for septic tanks and/or sewer connections, in one year's time.

She has no objection to such provisos being attached to a

variance, if one is granted.

25. At hearing, certified septic tank engineers,

Agnes Nelson and Joe Nelson, testified that the existing

750-gallon septic tank should handle 24 patrons and the water

use would be further limited by using plastic or paper drink

containers. In Mr. Nelson's opinion, since he found no salt

water from the Bay or water table inversion in the tank when he

inspected it, and since the drainfield slopes away from the

building, the only way salt water would enter the existing

septic tank is if it got above ground. Agnes Nelson conceded

that high tide could fill the tank up. If, for any reason, the

drainfields were not working, then the current septic tank would

not work. However, because the building is between the beach

and the drainfields; because, in her opinion, 24 patrons

probably could not fit inside the building; and because there

was so little solid waste in the tank when it was pumped,

Ms. Nelson doubted that the tide and the drainfields would

create a problem, even in ordinary rainy weather.

Unfortunately, in rendering her opinion, Ms. Nelson did not

consider the seating capacity of the tavern's deck or the effect

on the surface waters of Escambia Bay of operating the tavern

with the existing system.

26. As of the date of hearing, the Morenos were in

agreement with all of Petitioner's efforts to obtain a variance.

They also will allow her to bring the premises "up to Code," if

she can.

27. The Department's current opposition to granting a

variance with the provisos offered by Petitioner is based in

part on immaterial disputes between the parties over who signed

the original application for variance and who filled in the

number of seats as 75.

28. The Department also is mis trustful of Petitioner

because her second variance application stated the building

constituted 1,200 square feet. Because the Department and

Petitioner now agree that the premises comprise 900 square feet,

the error in the second application is also irrelevant.

29. The Department's current opposition to granting the

variance with the foregoing provisos volunteered by Petitioner

is at least in part due to the on-site audit, wherein

Departmental staff determined that the premises, including the

outside deck, actually could accommodate 60-75 living, but not

necessarily seated, patrons. The Department sees this as an

impediment to occupancy being limited to 24 patrons, in

practice. Human nature is such that if a bar has a large,

outside deck in a tropical climate, it will probably have more

patrons then those sitting in the 24 "seats" provided. While

this concern might be speculative in other realms, in dealing

with possible contaminants to groundwater or to the surface

waters of Escambia Bay, it is a legitimate, if uncodified,

concern.

30. Joseph Scott Hale, Environmental Health Supervisor I,

made the following suggestions which do not require a variance.

Petitioner could connect her premises to the existing sewer at

the 75-person occupancy limit; or could install a septic tank or

tanks and drainfield(s) in accordance with Departmental rules

for a 47-person occupancy limit; or could install a much more

modest tank and drainfield system for a 24-person occupancy

limit.

31. Petitioner has received written bids to accomplish

such alternatives in the following ranges. (1) Installation of

the necessary plumbing and pumps to connect to an accessible

sewer line is available at a cost of $27,628 to $28,450,

although these costs could be inflated to more than $40,000 by

adding a grinder station and by charges from CSX railroad for

access across its right-of-way to the existing sewer lines; and

(2) Installation of one or more septic tanks and drainfield

systems in accordance with current rules and in a size for an

occupancy capacity of 47 is available for a price ranging from

$28,032 to $29,465.

32. Neither of these options is currently feasible for

Petitioner, because she has spent her savings on the completed

renovations and has only $1,000 , on deposit at this time.

She has no current income. Without a contract to purchase the

tavern property, she does not believe she can obtain financing.

She is not eligible for an upgrade grant from the State because

the tavern is commercial property.

33. Petitioner feels that it would be necessary for her to

run the tavern at a profit for a year at a minimum capacity of

24 seats in order to be able to pay for either of the foregoing

possibilities. She cannot get an alcoholic beverage license

without the variance.

34. Petitioner is satisfied that if she cannot make a go

of the tavern within one year, she can rescind the lease. The

Morenos were silent on this issue. It is not necessary to

interpret the lease on this score in order to resolve this case.

35. Respondent construes part of Mr. and Mrs. Nelson's

testimony as providing a third, cost-effective, and reasonable

alternative for Petitioner in the form of a septic tank and

drainfield which could be installed according to current Code

with an occupancy capacity of 24 patrons at an approximate cost

of $3,600 to $4,000. This oral estimate was testified to by

Mrs. Nelson, who, although a certified septic tank inspector,

does not actually do installing of septic tanks. She conceded

that dollar figure was purely a guess and based on one elevated

tank of 1050 gallons with a baffle. Mr. Nelson, who does the

actual installing, estimated that more than one tank, a mount

system, and a pump or two might be necessary, at additional

cost. His thinking is in line with the components of the other

written estimates Petitioner has received. Accordingly, it is

found that the estimate that Ensley Septic Tank Service can

bring the existing system up to Code at a cost of $3,600 to

$4,000 to Petitioner is speculative and not a reasonable

alternative.

36. As is common, expert opinions were mixed on the

danger, if any, to the groundwater and surface waters which

would be occasioned by Petitioner operating the tavern under her

foregoing proposed provisos without upgrading the current septic

system.

37. Petitioner's expert in civil engineering and

degradation of groundwater did soil borings on the premises and

hit no groundwater at 15 inches, even after two weeks of

significant rain. However, his experience with soil analysis

from "mottling" was limited, and accordingly, his opinion that

water in the ground will never or rarely rise above 15 inches,

so as to endanger groundwater or surface waters was not

persuasive. Instead, I accept the greater weight of the

evidence as a whole in order to make the following findings of

fact.

38. The top of the drainfields are located 12 to 22 inches

below grade and occupy a one foot area, 24-34 inches below

grade. The seasonal high water table is 15 inches below grade.

The drainfields operate within the groundwater table. Current

rules require drainfields to have a separation from the bottom

of the drainfield to the top of the seasonal high water table so

as to provide space for aerobic biological action. When a

drainfield operates within the water table, no opportunity

exists for aerobic biological action. Anaerobic biological

action is not effective in killing viruses and other pathogens.

Viruses can travel in soil from a drainfield to surface water at

a rate of 100 feet in eight hours.

39. Mr. Hale, (see Finding of Fact 30), who was accepted

as an expert in groundwater table determination, has an

impressive list of credentials, and among other qualifications,

is State-certified in OSTDSs. He has personally witnessed water

rising to the level of the leechfield in this location.

40. Mr. Hale also took borings, but not in the leechfield.

Even though standing water was not found until 32 inches below

grade, the soil was saturated at 15 inches, which is the

seasonal high water table and mean high water mark of Escambia

Bay at Petitioner's waterfront.

41. The usual groundwater high water table in this

location is 24 inches below natural grade, and the temporary

water table rises and falls, as affected by Escambia Bay tides

and by rainfall. Another concern is that the leechfields

average only 15 inches below grade, and soil "capillary action"

or water "wicking" through the soil can result in contamination

of the groundwater if they become saturated. The close

proximity of the property to Escambia Bay presents the potential

for pollution of surface waters.

42. Mr. Hale reported that the tavern location is not

subject to frequent flooding. However, it can, and probably

will, flood, as before, during a hurricane.

43. Mr. Hale testified further that but for the length of

the cessation of business as a result of the hurricane (more

than one year), the tavern could have continued to operate with

eight seats and no danger to the groundwater. In his opinion,

the existing system, unaltered, can handle waste disposal for

only eight patrons.

44. A 47-seat occupancy is the maximum allowable for a

1,000 gallon flow. Even though 24 seats would not be expected to

exceed 1,000 gallons a day, 24 seats would not be accommodated

by the existing system's 750 gallon tank, drainfields,

leechfields, and insufficient set back footage. Mr. Hale

reluctantly conceded that 22 seats might be "feasible," with all

proposed provisos in place, plus the substitution of low flow

toilets, but that solution would not be his best recommendation

nor acceptable to the Department.

45. According to Dr. Malcomb Shields, who was accepted as

an expert microbiologist in the field of migration of pollutants

from drainfields to surface waters, Escambia Bay is already

above its threshold in dangerous nutrients.

46. Dr. Shields further opined, with impressive scientific

detail, that narrowing the zone in the drainfield, as on the

Lighthouse Tavern property, makes the drainfields susceptible to

more pathogens. In his opinion, the offered provisos would have

absolutely no effect on the existing septic tank and system

efficiency except to limit water and waste into the septic tank

itself.

47. Dr. Shields conceded that a variance granted upon the

terms requested would not, by itself, cause significant

degradation of water quality. However, he felt that perpetual

use of the variance, even with the foregoing provisos, would,

combined with all other factors present, contribute to surface

water degradation, which is the test under the rule.

Dr. Shields did not feel that a variance absolutely limited to

one year's duration would have the same effect.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1) and 381.0065,

Florida Statutes, and Chapter 64E-6, Florida Administrative

Code.

49. Respondent Department is the agency responsible for

oversight of the OSTDS program and variances, pursuant to

Chapter 381, Florida Statutes.

50. This is a de novo proceeding in which Petitioner, as

the applicant for a variance, has the duty to go forward to

establish, by a preponderance of the evidence, her entitlement

to a variance. This proceeding does not operate as an appeal to

assess whether or not the Department abused its discretion in

denying Petitioner's variance request.

51. Laws and rules applicable to this case are:

381.0065 Onsite sewage treatment and

disposal systems; regulation. -

(1) Legislative Intent. . . . It is further

the intent of the Legislature that the

installation and use of onsite sewage

treatment and disposal systems not diversely

affect the public health or significantly

degrade the groundwater or surface water.

(3) Duties and Powers of the Department of

Health. - The department shall:

* * *

(d) Grant variances in hardship cases under

the conditions prescribed in this section

and rules adopted under this section.

* * *

(4)(h) 1. . . . A variance may not be

granted under this section until the

department is satisfied that:

a. The hardship was not caused

intentionally by the action of the

applicant;

b. No reasonable alternative, taking into

consideration factors such as cost, 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 the public or significantly degrade the

groundwater or surface waters.

2. . . . A person who owns or operates a

business that uses an onsite sewage

treatment and disposal system that was

installed and approved before July 5, 1989,

need not obtain a system operating permit.

However, upon change of ownership or

tenancy, the new owner or operator must

notify the department of the change, and the

new owner or operator must obtain an annual

system operating permit, regardless of the

date that the system was installed or

approved.

64E-6.001 General.

(1) The provisions of Part I of this rule

shall apply to all areas of the state.

* * *

(4) . . . A commercial system out of

service for more than one year shall be

brought into full compliance with current

requirements of this Chapter prior to the

system being placed into service.

52. Petitioner's commercial system (that is, the existing

septic tank and drainfields) clearly was not servicing a

commercial establishment for over one year from September 28,

1998, until April 2000. See Rule 64E-6.001(4), Florida

Administrative Code.

53. Likewise, the existing system clearly is not in

compliance with existing rule requirements due to low tank

capacity (750 gallons is 300 gallons short of the required

minimum 1050 gallon capacity), lack of a baffle, lack of a

filter, insufficient set back, and the elevation of the

drainfields, which is within the existing high water table and

less than the minimum 24 inches above the water table.

54. Perhaps Petitioner has been unwise in her business

planning, but she has not "intentionally created her own

hardship" as that term is usually construed.

55. A financial hardship may be considered in determining

if a reasonable alternative exists for the treatment of the

sewage. Despite Respondent's reliance on Agnes Nelson's

guesstimate that $3,600 - $4,000 will "fix" all problems on this

site, the greater weight of the evidence is that Petitioner

would have to spend between $27,000 and $40,000 to bring this

location into compliance, unless a variance is granted. The

hardship is legitimate, and no reasonable alternative to a

variance exists.

56. The Department's own witnesses saw no harm inherent in

granting a variance permitting Petitioner to operate her tavern

with an occupancy of eight patrons, but they doubted she would

limit occupancy to that number. Based on the available deck

space, Petitioner's current financial situation, and her

recoupment projections, it is a reasonable doubt.

57. More than an eight-patron occupancy without Code

compliance clearly presents some threat to the groundwater and

surface waters.

58. However, the combined testimony of Mr. Hale and

Dr. Shields established that with all provisos in place, plus

the substitution of low-flow toilets, occupancy absolutely

limited to 22 (not 24) patrons for only one year's time would

not significantly degrade the groundwater or surface waters.

59. The same doubt remains, however, as to whether the

occupancy limit could be enforced. Therefore, if a one year

variance is granted, the additional precautions, including but

not limited to, removing deck seating should be instituted to

insure that the occupancy remains limited to 22 patrons.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the Department of Health enter a final order which:

(1) Permits Petitioner to operate her tavern either with a

connection to the existing sewer system or with installation of

a septic tank and drainfield system in accordance with the

current Florida Administrative Code rules for an occupancy

capacity of 24 patrons; and alternatively

(2) Grants Petitioner a 12-month variance to utilize the

existing tank and drainfield system upon the following terms:

(a) Petitioner shall obtain and maintain an annual

OSTDS operating permit allowing inspection at will by the

Department;

(b) Petitioner shall maintain an annual contract with

a licensed septic tank contractor to inspect and service the

existing OSTDS at least once per month, or more frequently as

necessary;

(c) Upon notification by the septic tank contractor

of any problem with the OSTDS, Petitioner shall provide port-a-

potties sufficient for 22 patrons;

(d) During the 12 months the variance is in place,

Petitioner shall provide a port-a-potty on any occasion of rain

over eight hours' duration.

(e) Petitioner shall not open for business until low-

flow toilets are substituted;

(f) Petitioner shall operate the premises as a tavern

for no more than 12 months, during which 12 months Petitioner

shall take all necessary steps to bring the system up to Code or

to connect to the sewer line;

(g) During the 12 months the variance is in pl ace,

Petitioner shall limit hours of operation to 15 hours daily;

eliminate all deck seating; provide no more than 22 seats

inside; use only paper or plastic ware; serve no food or mixed

drinks; and actively limit occupancy to 22 patrons at any one

time; and

(h) At the end of the 12 months, the system shall be

in compliance or the tavern shall be closed and remain closed

until compliance is achieved.

DONE AND ENTERED this 12th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________ ________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Fil ing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of February , 2001.

COPIES FURNISHED:

Steven E. Melei, Esquire

3603 Mobile Highway

Pensacola, Florida 32505

Rodney Johnson, Esquire

Department of Health

1295 West Fairfield Drive

Pensacola, Florida 32501

Theodore M. Henderson, Esquire

Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399-1701

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.