99-003584 May I. Bobbitt vs. Allen C. D. Scott, Ii, And Department Of Health Status: Closed Recommended Order on Thursday, June 8, 2000.

Summary: The evidence showed that Respondent Scott is entitled to hardship variance from the required set backs from a drinking water well.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAY I. BOBBITT, )

)

Petitioner, )

)

vs. ) Case No. 99-3584

)

ALLEN C. D. SCOTT, II and )

DEPARTMENT OF HEALTH, )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

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

on March 22, 2000, in St. Augustine, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Kimball Bobbitt, pro se

41 Zamora Street

St. Augustine, Florida 32095

For Respondent Allen C. D. Scott, II:

Allen C. D. Scott, II, Esquire

101 Orange Street

St. Augustine, Florida 3208 4

For Respondent Department of Health:

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is whether a variance for a reduce d

setback from Petitioner's well to Respondent Allen C.D. Scott,

II's (Scott) septic system should be granted by the Department

of Health.

PRELIMINARY STATEMENT

Respondent, Allen C.D. Scott, II, applied for a variance

from Respondent, Department of Health (DOH), requesting that the

required setbacks from a drinking water well and an irrigation

well on Petitioner's property from a proposed site for a septic

system on Respondent Scott's property be reduced. Petitioner

and neighbor, May I. Bobbitt, requested an administrative

hearing to refute the Department's action of granting the

variance. Petitioner's request was forwarded to the Division of

Administrative Hearings.

At the hearing Petitioner offered the testimony of two

witnesses, but did not offer any exhibits into evidence.

Respondent, DOH offered the testimony of four witnesses and

offered twelve exhibits into evidence. Respondent Allen C.D.

Scott, II testified in his own behalf and offered nine exhibits

into evidence.

After the hearing, Petiti oner and Respondent, DOH, filed

proposed recommended orders on April 5, 2000, and April 6, 2000,

respectively. Respondent Scott indicated he concurred in the

Department's proposed recommended order on April 11, 2000.

Petitioner Bobbitt filed a Motion to Strike Respondent's

proposed recommended order on April 20, 2000. The Motion to

Strike is denied. Respondent Scott filed a response to the

Motion to Strike on May 5, 2000, with several attachments from

the files of the Division of Administrative Hearings regarding

an earlier case over the same septic tank system. Petitioner

Bobbitt filed a reply to Scott's response to the Motion to

Strike on May 15, 2000. The proposed recommended orders and the

various motions, responses and replies have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Allen C.D. Scott, II, owns property designated as Lot

13, Block 11, Vilano Beach Subdivision, 40 Viejo Street in

St. Johns County, Florida. Mr. Scott's property is undeveloped,

except for a drinking water well located in the northwest

quadrant of his property. The well was installed within the

past year. There are residential homes on the north, south, and

west sides of the property. The beach is on the east of the

property. The property is 50 feet wide and 125 feet deep.

2. The property is not served by a public or private

utility; thus, Mr. Scott must provide his own drinking water

well and septic system.

3. Mr. Scott purchased the property from Alexander A.

Morese, Jr. Mr. Scott was Morese's attorney of record for

issues concerning this property and the proposed septic tank

system.

4. The neighboring property to the north of Mr. Scott's

property is owned by Petitioner, May Bobbitt. Petitioner has

two wells on her property. A fairly recently-installed drinking

water well and an irrigation well.

5. The irrigation well, is located 30 feet from a site on

Mr. Scott's property proposed for an on-site septic system. The

location of the proposed septic tank is less than the required

setback from a septic system to an irrigation well of 50 feet.

6. The potable drinking water well is 225 feet deep, pit-

cased and terminates in the Floridan aquifer. It is within 65

feet of Ms. Bobbitt's septic tank system and is located 50 feet

from the proposed site of Mr. Scott's septic system. The

location of the proposed septic tank is less than the required

setback from a potable drinking water well to a septic system of

75 feet.

7. The initial permit for Ms. Bobbitt's drinking water

well was denied based on its proximity to her septic tank.

Ms. Bobbitt challenged the denial in an informal proceeding

before DOH (DOH case number 97-023H). Mr. Morese played some

role in that proceeding.

8. In the meantime, the initial septic tank permit

application filed by Mr. Morese was denied by DOH based on the

location of Ms. Bobbitt's drinking water well. Mr. Morese

appealed the denial to the DOAH Case No. 98-3283.

9. Sometime in late 1997, DOH granted Ms. Bobbitt a

variance for a 65-foot setback distance from her drinking water

well to her septic system. The variance resulted after

settlement of the administrative actions involving May Bobbitt

and Mr. Morese's permitting her well and Mr. Morese's septic

tank. The variance was granted because the construction of the

well prevents contamination of the well from the septic system.

Both cases were separately terminated.

10. On November 5, 1997, Mr. Morese applied to DOH for a

variance to reduce the setback distances from Petitioner's two

wells to Mr. Morese's proposed septic system. Since Mr.

Morese's property was 50 feet wide and Mr. Morese desired to

build a two-bedroom home on the property, there was limited area

available to construct the septic system. The proposed septic

system is located in the only area available for such a system

and is the same location proposed by Respondent Scott.

11. A sign was posted on Mr. Morese's property notifying

Ms. Bobbitt of Mr. Morese's variance request.

12. The variance committee recommen ded approval of the

Morese variance with specific provisos at their December 1997,

meeting. Dr. Richard Hunter, Department of Health Deputy State

Health Officer, approved the variance with provisos by letter to

Mr. Morese on December 17, 1997. The letter stated the approval

as follows:

1. The onsite sewage treatment and disposal

system shall be set back from the irrigation

well on lot 14 by the maximum distance

attainable but not less than 30 feet when

installed.

2. The onsite sewage treatment and disposal

system shall be set back from the drinking

water supply well on lot 14 by the maximum

distance attainable but not less than 50

feet when installed.

3. The onsite sewage treatment and disposal

system drainfield elevation shall be based

on a seasonal high water table no lower than

12 inches below existing grade based on

William G. Harb's report of November 13,

1997.

13. The variance approval was not challenged by Petitioner

or any other neighbor. The variance was granted for a period of

one year from the date of Dr. Hunter's letter.

14. As indicated, Allen C.D. Scott, II, purchased the

property from Mr. Morese.

15. When Mr. Scott purchased the property from Mr. Morese,

the variance was transferred to Mr. Scott.

16. After Mr. Scott pur chased the property, he hired an

engineer to assist him in securing a Department of Environmental

Protection (DEP) coastal construction control permit. The

permit was finally issued on May 13, 1999.

17. The variance granted Mr. Morese and subsequently

transferred to Mr. Scott expired December 18, 1998. Thus, by

the time Mr. Scott obtained his DEP permit to put fill on his

property in order to construct his septic system, the variance

for reduced setbacks from Petitioner's wells had expired.

18. On June 14, 1999, Mr. Scott applied to DOH for a

variance to reduce the required setbacks from Petitioner's

irrigation and drinking water wells to his proposed septic

system. Mr. Scott's variance application requested the exact

same setbacks that Mr. Morese had been granted in December 1997.

19. For the same reasons the variance review committee

recommended approval of the Morese the committee recommended

approval of the Scott variance. Dr. Sharon Heber, Director of

Environmental Health, DOH, granted the variance by letter on

July 2, 1999. The letter contained the same provisions as

Mr. Morese received in December 1997.

20. The evidence demonstrated that the requested variance

would not adversely impact anyone's health or degrade ground or

surface waters. Moreover, the evidence showed that the variance

met all other Department criteria for an onsite sewage disposal

system.

21. Don Hallman, professional engineer, testified that the

pit casing of Ms. Bobbitt's well provides an additional layer of

protection from contamination sources. He further explained

that Petitioner's deep well was cased in a consolidated

formation which furnished protection from surface and lateral

contaminants. Mike Turner testified that he has permitted

and/or had experience with two thousand or more wells in his job

with the St. Johns Water Management District. He stated

unequivocally that Ms. Bobbitt's deep, pit-cased well was in no

more danger from contamination from Scott's septic system, 50

feet away, than it is from the 65-foot reduced setback distance

to her own septic system. Given these facts, Respondent is

entitled to a variance for his proposed septic tank system.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

action pursuant to Section 120.57(1), Florida Statutes.

23. The duties and powers of the Department of Health as

they relate to septic tank variances are set forth in Section

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

Florida Statutes, states that the Department shall "(g)rant

variances in hardship cases under the conditions prescribed in

this section and rules adopted under this section."

24. Section 381.0065(4)(h)1., Florida Statutes, provides

for hardship variances for on-site sewage treatment and disposal

systems. The applicable sections state:

(h)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 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.

25. Florida law concerning setba cks of septic systems from

wells is found in Sections 381.0065(4)(e)1. and 4., Florida

Statutes, and Rules 64E-6.005(1)(a) and (d), Florida

Administrative Code. These sections require that septic systems

will not be placed closer than 75 feet from a private potable

well and 50 feet from a nonpotable well.

26. In this case, Respondent's need for a variance was not

created by him given this is the only viable location for a

septic system. There is no significant danger to health and no

significant danger of pollution. Therefore, Respondent is

entitled to the variance.

27. DOH in its proposed recommended order asked that

attorney's fees and costs be granted based on a frivolous action

by Petitioner. The evidence did not establish that this case

was frivolous or improper, given that the Ms. Bobbitt never

formally participated in Mr. Morese's earlier case and it was

unclear to what extent she participated or understood any

settlement which may have occurred. Therefore attorney's fees

and costs are denied.

RECOMMENDATION

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

is

RECOMMENDED:

That the variance should be granted by the Department of

Health and Petitioner's challenge dismissed.

DONE AND ENTERED this 8th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-306 0

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June , 2000.

COPIES FURNISHED:

Charlene J. Petersen, Esquire

Department of Health

420 Fentress Boulevard

Daytona Beach, Florida 32114

May Bobbitt

41 Zamora Street

St. Augustine, Florida 32095

Allen C. D. Scott, II, Esquire

101 Orange Street

St. Augustine, Florida 32084

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

William Langue, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

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.