97-004600 Phyllis Peterman vs. Department Of Health Status: Closed Recommended Order on Tuesday, March 30, 1999.

Summary: Petitioner failed to present sufficient evidence to show her entitlement to a variance.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHYLLIS PETERMAN, )

)

Petitioner, )

)

vs. ) Case No. 97-4600

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law

Judge for the Division of Administrative Hearings, held a formal

hearing in this matter on February 9, 1999, in Bartow, Florida.

APPEARANCES

For Petitioner: Robert J. Antonello, Esquire

Antonello, Fegers and Cea

Post Office Box 7692

Winter Haven, Florida 33883-7692

For Respondent: Roland Reis, Esquire

Department of Health

1290 Golfview Avenue, 4th Floor

Bartow, Florida 33830-0293

STATEMENT OF THE ISSUE

Should Petitioner's application for variance from the

standards for onsite sewage treatment and disposal systems be

granted?

PRELIMINARY STATEMENT

On June 27, 1997, Petitioner made application for a permit

for construction of an onsite sewage treatment and disposal

system (OSTDS) with the Department of Health (Department) which

was denied by letter dated July 16, 1997. The denial letter gave

Petitioner the option of filing an application for variance from

the standards for an onsite sewage treatment and disposal system

or requesting a hearing on the denial of her application for the

permit. Petitioner chose the option of filing an application for

a variance. By letter dated August 7, 1997, the Department

denied Petitioner's application for a variance. By letter dated

August 25, 1997, Petitioner requested a formal hearing under

Chapter 120, Florida Statutes, on the Department's denial of her

application for variance.

By a Notice dated October 9, 1997, the Department referred

this matter to the Division of Administrative Hearings (Division)

for the assignment of an Administrative Law Judge and for the

conduct of a hearing.

The matter was scheduled for hearing, but before the matter

could be heard, the parties filed a joint Stipulation for

Voluntary Dismissal Without Prejudice and the Division's file was

closed by Order Closing File issued on March 2, 1998. On a

Motion to Reopen File dated November 25, 1998, an Order Reopening

File was issued on December 18, 1998, and the matter scheduled

for hearing on February 9, 1999.

At the hearing, Petitioner testified on her own behalf but

did not present any other witness. Petitioner's Composite

Exhibit 1 was received as evidence. The Department presented the

testimony of Mark Shaller. The Department's Exhibits 1-6 were

received as evidence.

There was no transcript of this proceeding filed with the

Division. The parties were granted an extension of time within

which to file their proposed recommended orders with the

understanding that the time constraint imposed under

Rule 28-106.216(1), Florida Administrative Code, was waived in

accordance with Rule 28-106.216(2), Florida Administrative Code.

The parties timely filed their Proposed Recommended Orders under

the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence

adduced at the hearing, the following relevant findings of fact

are made:

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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."

10. 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.

11. 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.

12. 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.

13. The Petitioner intends to locate the OSTDS on the

Property.

14. The tank and drain field for the OSTDS will be located

approximately 125 feet from the basin.

15. The City of Winter Haven's Sewage System is not

available to the Property.

16. The Park's existing STS does not have adequate capacity

to accept the sewage that will be generated by the Property.

17. There is no publicly-owned or investor-owned sewage

system capable of being connected to the plumbing of the

Property.

18. 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.

19. The projected daily domestic sewage flow from the

Property is less than 1,500 gallons per acre per day.

20. The Property contains 1.78 acres and there will be less

than four lots per acre.

21. 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.

22. 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.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.57(1), Florida Statutes.

24. Sections 381.0065(1)(3)(b)(d) and (4)(g)1.2., Florida

Statutes provide as follows:

(1) LEGISLATIVE INTENT.- It is the intent of

the Legislature that where a publicly owned

or investor-owned sewerage system is not

available, the department shall issue permits

for the construction, installation,

modification, abandonment, or repair of

onsite sewage treatment and disposal systems

under conditions as described in this section

and rules adopted under this section. It is

further the intent of the Legislature that

the installation and use of onsite sewage

treatment and disposal systems not adversely

affect the public health or significantly

degrade the groundwater or surface waters.

* * *

(3) DUTIES AND POWERS OF THE DEPARTMENT OF

HEALTH.- The department shall:

* * *

(b) Perform application reviews and site

evaluations, issue permits, and conduct

inspections and complaint investigations

associated with the construction,

installation, maintenance, modification,

abandonment, or repair of an onsite sewage

treatment and disposal system for a residence

or establishment with an estimated domestic

sewage flow of 10,000 gallons or less per

day , or an estimated commercial sewage flow

of 5,000 gallons or less per day, which is

not currently regulated under chapter 403.

* * *

(d) Grant variances in hardship cases under

the conditions prescribed in this section and

rules adopted under this section.

* * *

(4) PERMITS; INSTALLATIONS; AND CONDITIONS.

* * *

(g)1. The department may grant variances in

hardship cases which may be less restrictive

than the provisions specified in this

section. . . . A variance may not be granted

under this section until the department is

satisfied that:

a. The hardship was not caused

intentionally by the action of the applicant;

b. No reasonable alternative, taking in

consideration factors such as costs, 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. The department shall appoint and staff

a variance review and advisory committee,

which shall meet monthly to recommend agency

action on variance requests. . . . The

committee shall consider the criteria in

subparagraph 1. in its recommended agency

action on variance requests and shall also

strive to allow property owners the full use

of their land where possible. (Emphasis

furnished).

25. Rule 64E-6.002(21), Florida Administrative Code,

provides as follows:

For the purposes of this Chapter, the

following words and phrases shall have the

meaning indicated:

* * *

(21) Establishment. A multi-family housing,

apartment, condominium or townhouse complex,

a mobile home park or recreational vehicle

park, a non-residential commercial or

institutional development or places of

business or assembly. An establishment

includes all buildings or structures and the

land appertaining thereto and shall an owners

association or other legal entity which is

responsible for maintenance and operation of

the development's sewage treatment and

disposal facilities. (Emphasis furnished).

26. In reviewing Petitioner's application for a permit to

install septic tanks on the Property, the Department considered

the Park and the Property as one mobile home park and thereby one

establishment and determined that the estimated domestic sewage

flow from that establishment exceeded the allowable domestic

sewage flow of 10,000 gallons or less per day authorized by

Section 381.0065(3)(b), Florida Statutes. Having made that

determination, the Department then took the position that it was

not authorized to issue the permit unless Petitioner requested

and was granted a variance for the combined domestic sewage flow

from the mobile home park to exceed the 10,000 gallons or less

per day and denied the permit application.

27. The Department offered Petitioner the opportunity to

either challenge its denial of the application by requesting an

administrative hearing pursuant to

Section 120.57, Florida Statutes, or to request a variance from

the 10,000 gallons or less per day requirement from the Variance

Review Board under Section 381.0065(4)(g)1.2., Florida Statutes.

Petitioner elected to request a variance from the Variance Review

Board and did not challenge the Department's position that the

Property and the Park constituted a mobile home park and thereby

was one establishment and that the combined flow of domestic

sewage from that establishment exceeded the maximum flow of

domestic sewage authorized by Section 381.0065(3)(b), Florida

Statutes.

28. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 2d DCA 1981). To meet this burden, the

Petitioner must establish facts to show her entitlement to a

variance from the requirements of Section 381.0065(3)(b), Florida

Statutes, by a preponderance of evidence. Section 120.57(1)(h),

Florida Statutes.

29. Although the Department did not object to Mr. Cover's

letter being received into evidence, the fact remains that Mr.

Cover's letter and his opinion are hearsay evidence and without

more cannot form the basis for a finding of fact.

Section 120.57(1)(c), Florida Statutes. There was no other

evidence presented to show that the requirements of

Section 381.0065(4)(g)1.b.c., Florida Statutes had been met.

Therefore, assuming arguendo that Petitioner has shown that

denying her the variance would create a hardship and that the

hardship was not caused intentionally by Petitioner's action, she

has failed to meet the requirements of Section

381.0065(4)(g)1.b.c., Florida Statutes.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

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.