State Dept. of Health and Rehabilitative Services v. Framat Realty, Inc., AB-496

Decision Date18 November 1981
Docket NumberNo. AB-496,AB-496
Citation407 So.2d 238
PartiesSTATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. FRAMAT REALTY, INC. and Arthur M. Elliott, Appellees.
CourtFlorida District Court of Appeals

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."

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 lot containing at least one-quarter acre. This "four per acre" test, in the words of this administrator, is designed to get "the sewage spread homogenously, if possible, throughout that subdivision."

The Department urges that its use of a "net acre" concept in defining the statutory "four lots per acre" is in keeping with its statutory duty to protect the public health through safe disposal of sewage. This duty, the Department maintains, is reflected in language of section 381.272(7), conditioning septic tank use on satisfaction of "other related requirements which are generally applicable to the use of individual sewage disposal systems." Appellees, on the other hand, contend the statute permits septic tanks on every lot of a subdivision if the total acreage in the development, divided by the number of lots, yields an average density of less than four lots per acre. Under this interpretation, every lot in appellees' Monroe County subdivision would qualify for a septic tank, regardless of the size of any individual lot and regardless of the local concentration of numerous small lots, because the whole subdivision contains 50 lots on 12.8 acres, or a "gross" density of 3.93 lots per acre. The Department counters that this interpretation is absurd from a public health standpoint, because it would allow a developer to install large numbers of septic tanks densely in a very small section of his subdivision as long as acreage elsewhere in the subdivision, undeveloped or devoted to less intensive uses, reduces the overall average sufficiently.

We reverse the hearing officer's order invalidating the rule as beyond the Department's statutory authority. Whether the Department's interpretation of section 381.272(7) is the only possible interpretation of the statute, or the most desirable one, we need not say. It is within the range of permissible interpretations of the statute, and that interpretation has acquired legitimacy through rulemaking processes in which those challenging the rule fully participated or had an opportunity to participate. We must remember here one prime goal of the 1974 Administrative Procedure Act: to encourage agencies of the executive branch to interpret statutes in their regulatory care deliberately, decisively, prospectively, and after consideration of comments from the general public and affected parties-that is, to interpret their statutes by rulemaking. We have repeatedly found that other APA processes press the executive inexorably toward rulemaking, although it is not required in all cases:

In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the Court surveyed the adjudication and judicial review procedures of Chapter 120 and characterized them as pressing agencies to progress in the development of known policies within statutory limits by "moving from vague standards to definite standards to broad principles to rules." 346 So.2d 580, quoting K. Davis, Discretionary Justice 55 (1969).

In Hill v. School Board of Leon County, 351 So.2d 732, 733 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978), the Court noted that the APA rulemaking...

To continue reading

Request your trial
42 cases
  • Bayonet Point Regional Medical Center v. Department of Health and Rehabilitative Services
    • United States
    • Florida District Court of Appeals
    • November 24, 1987
    ...DCA 1983); Department of Administration v. Nelson, 424 So.2d 852 (Fla. 1st DCA 1982); State, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). This principle has been referred to as the cardinal principle of administrative law. Wilso......
  • Sans Souci v. Division of Florida Land Sales and Condominiums, Dept. of Business Regulation, AG-137
    • United States
    • Florida District Court of Appeals
    • October 21, 1982
    ...parties' intent can be ascertained from the terms of the written master sublease. Cf. State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981); Key Haven Associated, at 71; Peacock Construction Co. v. Modern Air Conditioning, Inc., 353......
  • State, Dept. of Ins. v. Insurance Services Office, VV-367
    • United States
    • Florida District Court of Appeals
    • May 3, 1983
    ...public and affected parties--that is, to interpret their statutes by rulemaking." State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981). The incentives for rulemaking were described at length in McDonald v. Department of Bankin......
  • Palm Beach Junior College Bd. of Trustees v. United Faculty of Palm Beach Junior College
    • United States
    • Florida District Court of Appeals
    • December 30, 1982
    ...Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). As we observed in Framat Realty, Inc., 407 So.2d at 242: "[T]he judiciary must not, and we......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT