State Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., No. AB-496

• Court: Court of Appeal of Florida (US)
• Writing for the Court: ROBERT P. SMITH, Jr.; JOANOS; THOMPSON; THOMPSON
• Citation: 407 So.2d 238
• Decision Date: 18 November 1981
• Docket Number: No. AB-496
• Parties: STATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. FRAMAT REALTY, INC. and Arthur M. Elliott, Appellees.

Page 238

407 So.2d 238 STATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant,
v.
FRAMAT REALTY, INC. and Arthur M. Elliott, Appellees. No. AB-496. District Court of Appeal of Florida, First District. Nov. 18, 1981.
Rehearing Denied Dec. 18, 1981.

Page 239

Steven W. Huss, Tallahassee, for appellant.

Michael Egan and Jane Heerema, of Roberts & Egan, Tallahassee, for appellees.

Stephen W. Metz, Tallahassee, for Florida Home Builders Ass'n, amicus curiae.

ROBERT P. SMITH, Jr., Chief Judge.

The Department of Health and Rehabilitative Services appeals an order by a hearing officer of the Division of Administrative Hearings declaring invalid the Department's 1979 rule governing septic tank use in residential subdivisions. Section 120.56, Fla.Stat. (1979). The hearing officer concluded that in promulgating the rule the Department both exceeded its statutory authority and failed to prepare an adequate statement of the economic impact of the rule. We hold the rule was valid as against appellees' claim that it exceeds the scope of the substantive statute the rule elucidates; this interpretative rule is valid because it represents a permissible, interpretation that has been validated by public rulemaking processes that are designed to test and refine the agency's policy. However, we agree with the hearing officer's finding that the rule is invalid because its economic impact statement is inadequate by Chapter 120 standards.

This dispute involves interpretation of one of several statutes regulating use of individual septic tanks in Florida, an area of public health specifically committed to the Department's general supervision and control. Section 381.261, Fla.Stat. (1979). The statute in question, section 381.272(7), Fla.Stat. (1979), authorizes use of septic tanks as follows:

Notwithstanding any other provisions of this chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities, provided there are no more than four lots per acre and that all distance and setback, soil condition, water table elevation, and other related requirements which are generally applicable to the use of individual sewage disposal systems are met. (Emphasis added.)

Prior to 1979 amendment, the 1977 statute authorized septic tank use provided there were no more than "two lots per acre."

Page 240

To gather views on implementing the 1977 statute and to explore general changes in its septic tank regulations, the Department held a workshop in February 1979, receiving recommendations from the Florida Home Builders Association, the Florida Septic Tank Association and the Department of Environmental Regulation. Also under discussion, as a means of implementing the statute, was a "net acre" concept that in calculating "lots per acre" does not count acreage in roads, lakes and certain other areas within a given subdivision. In June 1979, the Department issued notice of a regular section 120.54(3) public hearing on two proposed rules limiting use of septic tanks under section 381.272(7) to subdivisions with two lots per "net usable acre," excluding lands devoted to common uses and bodies of water. Again interested persons, this time including the Florida Association of Realtors, appeared at the hearing and pressed their views.

Eventually, with the benefit of this input, the Department adopted the rule under challenge, Rule 10D-6.23(3)(g), Florida Administrative Code. As a predicate, Rule 10D-6.23(3)(f) was written:

Notwithstanding any other provisions of this Chapter, residential subdivisions with a public water system may utilize individual sewage disposal facilities provided there are no more than four (4) lots per acre and acre (sic) and that all distance and setback, soil condition, water table elevation and other related requirements which are generally applicable to the use of individual sewage disposal systems are met.

And Rule 10D-6.23(3)(g) provides:

Whenever individual sewage disposal systems are used under the provisions of Section 10D-6.23(3)(f), an acre, as defined elsewhere in this Chapter (defined in Rule 10D-6.22(3) as 43,560 square feet of land), shall not include the following: paved areas, paved and unpaved rights of ways, paved roadways, consolidated buildings, foundation drainage, underground water drainage, streams, lakes, ditches, coastal, waters and marshes. Within any given acre where lots abut open lands, such as golf courses, parks and other open unused areas that are not subject to development, the requirements of Section 10D-6.23(3)(f) may be diminished by not more than ten (10) percent for those lots abutting the open lands, provided that said open lands are not developed, provided further that all distance and set back, soil condition, water table elevation and other related requirements of Chapter 10D-6 are met.

In practice, according to the Department's environmental health administrator, the rule requires a developer to show, as a condition to installing septic tanks on a platted lot or lots, that the subject lot and any three contiguous lots, excluding the specified common areas platted by the developer, make up at least an acre. An individual lot owner seeking a septic tank permit without regard to the size of the lots around him must have a...