98-000056 Fletcher C. Bishop vs. Department Of Health Status: Closed Recommended Order on Wednesday, March 11, 1998.

Summary: Where Petitioner created own hardship and increased sewage would degrade groundwater, request for variance denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLETCHER C. BISHOP, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-0056

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on February 24, 1998, in Tavares, Florida, before Donald R.

Alexander, the assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert P. Jencic

102 South Palm Avenue

Howey in the Hills, Florida 34737

For Respondent: Marya Reynolds Latson, Esquire

Post Office Box 2408

Ocala, Florida 34478

STATEMENT OF 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.

PRELIMINARY STATEMENT

This matter began on December 4, 1997, when Respondent,

Department of Health, issued a letter denying a request by

Petitioner, Fletcher C. Bishop, Jr., through his lessee,

Robert P. Jencic, for a variance from the requirements of

Chapter 64E-6, Florida Administrative Code, for property located

in Howey in the Hills, Florida. Thereafter, Jencic requested a

formal hearing to contest the proposed denial of his request.

The matter was referred by Petitioner to the Division of

Administrative Hearings on January 8, 1998, with a request that

an Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated January 27, 1998, a final

hearing was scheduled on February 24, 1998, in Tavares, Florida.

At final hearing, Petitioner was represented by Robert P.

Jencic, who currently leases the property and has a contract to

purchase the property on March 1, 1998. Also, Petitioner

presented the testimony of Andrew Patrick, who is the grandfather

of Jencic's fiancee, and he offered Petitioner's Exhibit 1 which

was received in evidence. Respondent presented the testimony of

Roberta H. Gutting, an environmental supervisor for the Lake

County Health Department; and David H. Hammonds, an environmental

specialist for the Bureau of Onsite Sewage Programs of the

Department of Health. Also, it offered Respondent's Exhibits

A-F. All exhibits were received in evidence.

There is no transcript of hearing. Proposed findings of

fact and conclusions of law were due by March 6, 1998. None were

filed by either party. However, on March 4, 1998, Petitioner

submitted a letter with several documents identified as "Defense

Exhibits A through H." This submission is discussed in the

Conclusions of Law portion of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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."

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Section 120.569, Florida Statutes (1997).

19. In this proceeding, Petitioner requests a variance from

the requirements of various Department rules which restrict the

number of seats in his restaurant due to lot flow limitations.

Although variances are now generally subject to the requirements

of Section 120.542, Florida Statutes (1997), those requirements

do not "abrogate the variance and waiver provisions in any other

statute." See Section 120.542(1), Florida Statutes (1997).

Because other variance provisions are found in Chapter 381,

Florida Statutes, the latter provisions are controlling.

20. Section 381.0065(3)(d), Florida Statutes (1997),

provides that, in its administration of the onsite sewage

treatment and disposal systems program, the Department may

"[g]rant variances in hardship cases under the conditions

prescribed in this section and rules adopted under these

provisions. Section 381.0065(4)(g)1.a-c, Florida Statutes

(1997), provides that a variance may not be granted until the

Department is satisfied 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 the public or significantly degrade the

groundwater or surface waters.

21. Petitioner has failed to demonstrate that the hardship

was not caused intentionally by his own actions. That is to say,

despite being aware of the lot flow limitations which restricted

his restaurant to 12 seats, Jancic nonetheless invested a large

sum of capital to renovate and equip his restaurant, and he

commenced operations.

22. Even assuming that Jancic did not intentionally create

his own dilemna, he has failed to show that the increased

discharge from the restaurant will not adversely affect the

health of the applicant or significantly degrade the groundwater

or surface water. This is based on the fact that a variance

would allow a larger amount of sewage to be discharged into an

easement which is not designed to handle that amount of flow.

This being so, despite Jancic's good intentions and the extremely

unfortunate circumstances he now finds himself in, the request

for a variance from Rules 64E-6.001(4)(c), 64E-6.005(7)(b), and

64E-6.008(1), Florida Adminstrative Code, must be denied.

23. At hearing, Jancic discussed the possibility of

obtaining an easement from the owner of the eastern half of

Block C-2 so as to increase the size of his allocated easement.

Whether this is a viable alternative or would cause other lot

owners in the eastern half of the Block to be subject to

enforcement proceedings due to their allocations being reduced is

not the subject of this proceeding. Rather, it would have to be

the subject of another variance request, once the new easement is

recorded. In any event, Jancic would be well-served to discuss

this option with the Lake County Department of Health before

attempting to obtain the easement.

24. Finally, on March 4, 1998, Petitioner filed a letter

and eight documents identified as "Defense Exhibits A through H."

Because the record in this proceeding was closed on February 24,

1998, the exhibits have not been made a part of this record.

Parenthetically, however, it is noted that the documents simply

corroborate the already established fact that he has expended

large amounts of money in opening his business.

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

[phone] SUNCOM 278-9675

Fax Filing [phone]

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

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 Department of

Health.