99-004251 Connie Biancardi vs. Department Of Health Status: Closed Recommended Order on Monday, April 17, 2000.

Summary: Petitioner did not show good cause for obtaining a second variance for an undersized septic system. Respondent showed that granting the variance was a potential health risk.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONNIE BIANCARDI, )

)

Petitioner, )

)

vs. ) Case No. 99-4251

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

This matter came on for final hearing before the Honorable

Stephen F. Dean, Administrative Law Judge, Division of

Administrative Hearings, by video teleconference at 210 North

Palmetto Avenue, Room A101, Daytona Beach, Florida, and 4030

Esplanade Way, Room 109, Tallahassee, Florida, commencing at

11:00 a.m., on January 24, 2000.

APPEARANCES

For Petitioner: Connie Biancardi, pro se

2820 Howland Boulevard

Deltona, Florida 32725-1606

For Respondent: Charlene J. Petersen , Esquire

Department of Health

Volusia County Health Department

420 Fentress Boulevard

Daytona Beach, Florida 32114

STATEMENT OF THE ISSUE

The issue in this case is whether the Variance Review and

Advisory Committee and the Department of Health had just cause

to disapprove Petitioner's application for a variance.

PRELIMINARY STATEMENT

Petitioner applied for a variance to extend her existing

variance until sometime in year 2001 when county sewer lines are

anticipated to be installed to serve Petitioner's commercial

property. Petitioner was previously granted a six-month

variance with provisos to utilize her existing septic system to

handle increased sewage flow for a lessee's restaurant until she

could install a properly sized system. At the formal hearing,

Respondent presented testimony of Eric Maday, Dale Holcomb, and

David Hammonds. Respondent introduced Exhibit Nos. 1-8, which

were admitted into evidence. Petitioner represented herself and

introduced Exhibit Nos. 1-20, which were introduced into

evidence. Respondent filed a proposed recommended order which

was read and considered in preparing this recommended order.

FINDINGS OF FACT

1. The Department of Health (DOH) is the agency

responsible for oversight of the on-site sewage treatment and

disposal systems program and the Variance Review and Advisory

Committee which meets monthly to recommend agency action on

variance requests pursuant to Chapter 381, Florida Statutes.

2. In August 1999, Petitioner applied to t he DOH for a

second variance to extend a variance previously granted in June

1999, to use an existing septic system for six months.

Petitioner's application for the second variance stated that

county sewer would be available in 2001, and she would be

required to hook into the sewer. Therefore, Petitioner wanted

an extension to continue using the existing undersized septic

system until the sewer was available. She also attached water

usage records for June 1998 through July 1999, for her property.

3. P etitioner owns the commercial property served by the

septic system and located on Howland Boulevard in Deltona,

Florida. The property consists of a strip mall with five

offices and one restaurant. The property originally contained

six office spaces in 1990, when Petitioner applied for a permit

to install a septic system to handle the building's sewage flow.

See Petitioner's Exhibit No. 1. Petitioner was granted a

construction permit for the septic system on August 14, 1990,

which contained the statement: "no food service operations

permitted in this building."

4. Prior to May 1999, Petitioner leased an office in her

commercial property to Milagros Martinez to operate a sandwich

shop. Ms. Martinez applied to DOH for approval to use

Petitioner's existing septic system to handle her sandwich shop

sewage, and was denied because of increased water use and septic

system demands of a restaurant.

5. Petitioner's septic system contains a 750-gallon tank

with 162 square feet of drainfield. In order to handle the

additional sewage generated by the sandwich shop, the Florida

Administrative Code requires a 1350-gallon tank and a drainfield

of 787 square feet. There is enough room on Petitioner's

property to install a separate septic system to handle the

sewage generated from the sandwich shop.

6. Petitioner applied to DOH for her first variance in May

1999, requesting to utilize the septic system to handle the

waste from the sandwich shop. Petitioner appeared before the

DOH Variance Review and Advisory Committee in June 1999. The

committee recommended, and DOH concurred, to approve the first

variance with four provisos. See DOH Exhibit No. 2.

7. The four provisos were:

A. The applicant shall obtain and maintain

an annual onsite sewage treatment and

disposal system operating permit in

accordance with subsection 64E-6.003(5),

F.A.C.

B. The owner shall maintain an annual

contract with a licensed septic tank

contractor to inspect and service the onsite

sewage treatment and disposal system at

least once per month or more frequently as

necessary.

C. This variance allows operation of the

sandwich shop for no more than six months.

During that six months, the applicant shall

take all necessary steps to increase the

capacity of the system to accommodate the

additional 230-gallon sewage flow from the

sandwich shop.

D. At the end of the six months, the system

shall be in compliance or the sandwich shop

shall be closed and remain closed until

compliance is achieved.

8. The four provisos were additio nally explained to

Petitioner in a letter dated July 14, 1999, from Sharon Heber,

Director of the DOH Environmental Health Division. See DOH

Exhibit No. 1. Petitioner accepted the provisions of the first

variance on July 20, 1999. See DOH Exhibit No. 4.

9. Petitioner does not have a current annual on-site

sewage treatment and disposal system operating permit as

required by the first proviso.

10. Petitioner did not contract with a licensed septic

tank contractor to inspect and service her system at least once

per month as required in the second proviso. Petitioner called

a contractor to inspect her system four times in the six-month

period since the first variance was granted.

11. Within six months, Petitioner did not take the

necessary steps to increase the capacity of her septic system to

handle the additional flow as required by the third proviso of

the first variance.

12. The system is not in compliance and the sandwich shop

is not closed as stated in the fourth proviso.

13. In Augu st 1999, Petitioner filed for a second variance

requesting that the first variance be extended until year 2001.

That is the date the county plans to install a sewer line on

Howland Boulevard in Deltona, which will serve her commercial

property. She submitted a letter from the Volusia County Public

Works Service Center stating that the "sewer service is planned

to be available sometime in the year 2001." See Petitioner's

Exhibit No. 4.

14. The Variance Review and Advisory Committee considered

Petitioner's request at their September meeting. The variance

committee unanimously denied Petitioner's request for a second

variance.

15. The Petitioner's system was not designed to handle an

increased amount of sewage flow, and that it would eventually

collapse or fail. The committee's approval of the first

variance was to allow Petitioner adequate time to install the

necessary septic system for the restaurant, and not put

Petitioner in the position of telling her tenant she could not

open her restaurant. See DOH Exhibit No. 5.

16. When Petitioner's existing system fails, sewage will

pond on the ground. The ponding fluid will consist of raw

sewage. The leaking/ponding sewage may seep into the

groundwater and then into drinking water aquifers. In the right

conditions, this pollution can cause the spread of waterborne

diseases such as typhoid and cholera, or viral infections, such

as hepatitis A or polio.

CONCLUSIONS OF LAW

17. 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.

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

they relate to the on-site sewage treatment and disposal systems

are set forth in Section 381.0065(3), Florida Statutes. The

applicable sections state:

The Department shall:

(a) Adopt rules to administer ss. 381.0065

- 381-0067.

(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 . . . .

(c) Develop a comprehensive program to

ensure that onsite sewage treatment and

disposal systems regulated by the department

are sized, designed, constructed, installed,

repaired, modified, abandoned, and

maintained in compliance with this section

and rules adopted under this section to

prevent groundwater contamination and

surface water contamination and to preserve

the public health. The State Health Office

is the final administrative interpretive

authority regarding rule interpretation. . .

.

(d) Grant variances in hardship cases under

the conditions prescribed in this section.

19. The duties and pow ers of the agency as they relate to

variances from the on-site sewage treatment and disposal system

statutes and code are set forth in Section 381.0065(4)(h),

Florida Statutes. 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 . . . .

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 make its recommendations on variance

requests at the meeting in which the

application is scheduled for consideration,

except for an extraordinary change in

circumstances, the receipt of new

information that raises new issues, or when

the applicant requests an extension. 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. . . .

20. Petitioner applied for her first variance to obtain

approval to use her existing septic system because she rented a

commercial office space to a lessee for use as a sandwich shop.

Petitioner's septic system was not sized large enough to handle

anticipated sewage flow for a restaurant, and the Petitioner

applied for a variance to use the existing system to permit the

restaurant to open. The variance committee and DOH granted

Petitioner a six-month variance with provisos to give Petitioner

time to enlarge her existing system or install a separate system

to handle the restaurant's sewage requirements to permit the

restaurant to stay open.

21. During the six months of the first variance,

Petitioner learned that the County of Volusia is planning to

install sewer lines along the street in front of her commercial

property sometime in the year 2001. The Petitioner took no

action to enlarge the septic system or install a separate system

for the restaurant. The Petitioner applied for an extension of

the first six-month variance until the sewer is available in

2001.

22. Section 381.0065(4)(h)1., Florida Statutes, sets forth

the factors to be considered by the variance committee when

reviewing and granting a variance. The first factor is that the

hardship was not "caused intentionally by the action of the

applicant." Petitioner made the choice to rent commercial

office space to a tenant who intended to operate a sandwich

shop. The Petitioner did not use the period of the first

variance to remedy the problem. In this case, the hardship was

caused by the applicant/Petitioner's choice to rent office space

for a sandwich shop and not remedy the situation after obtaining

her first variance. Petitioner caused her own hardship.

23. The second factor to be considered by t he committee is

whether there is a reasonable alternative to solve the sewage

problem. In this case, a separate system could be installed to

serve the restaurant. There is room on the property for this

expanded system.

24. When the system fails, it w ill cause a sanitary

nuisance and health hazard which will adversely effect the

public health.

25. The variance committee and DOH considered the

statutorily-required factors in granting a variance and

disapproved Petitioner's application for a second variance

because it did not meet the statutory criteria.

RECOMMENDATION

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

is

RECOMMENDED:

That the Department of Health enter a final order affirming

the decision of the Variance Review and Advisory Committee and

the Department of Health to disapprove Petitioner's second

variance application.

DONE AND ENTERED this 17th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEA N

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 17th day of April , 2000.

COPIES FURNISHED:

Connie Biancardi

2820 Howland Boulevard

Deltona, Florida 32725-1606

Charlene J. Petersen, Esquire

Department of Health

Volusia County Health Department

420 Fentress Boulevard

Daytona Beach, Florida 32114

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

William Large, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A02

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.