01-001033 Paul Still vs. New River Solid Waste Association And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, August 7, 2001.


View Dockets  
Summary: Request to include bioreactor in renewal application in response to Request for Additional Information was sufficient. Request for attorney fees under Sections 403.412(2)(f) and 120.595(1), Florida Statutes, denied.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PAUL STILL, )

11)

12Petitioner, )

14)

15vs. )

17) Case No. 01-1033

21NEW RIVER SOLID WASTE )

26ASSOCIATION and DEPARTMENT OF )

31ENVIRONMENTAL PROTECTION, )

34)

35Respondents. )

37)

38RECOMMENDED ORDER

40On June 4-5, 2001, a final administrative hearing was held

50in this case in Gainesville, Florida, before J. Lawrence

59Johnston, Administrative Law Judge (ALJ), Division of

66Administrative Hearings (DOAH).

69APPEARANCES

70For Petitioner : Paul Still, pro se

77Route 4 Box 1297H

81Starke, Florida 32091

84For Department of Environmental Protection:

89W. Douglas Beason, Esquire

93Department of Environmenta l Protection

983900 Commonwealth Boulevard

101The Douglas Building, Mail Station 35

107Tallahassee, Florida 32399-3000

110For New River Solid Waste Association:

116Jonathan F. Wershow, Esquire

120Post Office Box 1260

124Gainesville, Florida 32602

127STATEMENT OF THE ISSUES

131The issues remaining in this case are: (1) whether New

141River Solid Waste Association (NRSWA) requested that its

149permitted bioreactor landfill system be included as part of its

159application for renewal of its operating permit for the New

169River Regional Landfill in Union County, Florida; (2) whether

178Petitioner participated in this proceeding for an improper

186purpose under Section 120.595(1); and (3) whether the prevailing

195party is entitled to an award of attorney fees and costs under

207Section 403.412(2)(f). (Citations to sections are to the 2000

216codification of Florida Statutes. Rule citations are to the

225current Florida Administrative Code.)

229PRELIMINARY STATEMENT

231This case involves NRSWA's application to renew its Permit

240No. SC63 -271982 for the continued operation of its landfill, in

251particular as it relates to NRSWA's earlier application to

260modify the permit to allow construction and operation of a

270bioreactor landfill system on retired cells 1 and 2 of the

281landfill (Permit No. 001-3500-004SC). The complicated interplay

288between these proceedings is part of both the procedural

297background and pertinent facts of this case.

304On June 26, 2000, DEP gave notice of its intent to issue

316NRSWA a permit modification to construct a bioreactor system at

326its landfill (Permit No. 001-3500-004-SC). On July 11, 2000,

335Petitioner, Paul Still, timely filed a Petition for

343Administrative Hearing to challenge DEP's proposed agency

350action. On or about August 15, 2000, DEP referred the matter to

362DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ.

374On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition

386for Administrative Hearing for lack of standing.

393On September 8, 2000, while Case No. 00-3448 on the

403bioreactor modification application was pending, NRSWA applied

410to DEP for renewal of Permit No. SC63-271982 for continued

420operation of its landfill.

424On September 18, 2000, the ALJ in Case No. 00-3448 entered

435an Order Granting Motion to Dismiss with Leave to Amend as to

447standing.

448On September 26, 2000, the Petitioner filed an Amended

457Petition for Administrative Hearing in Case No. 00-3448 which

466included new standing allegations. On October 5, 2000, NRSWA

475filed a Motion to Dismiss the Amended Petition for

484Administrative Hearing for lack of standing.

490On October 6, 2000, DEP issued a Request for Additional

500Information (RAI) as to the renewal application.

507On October 20, 2000, the ALJ in Case No. 00-3448 granted

518NRSWA's motion to dismiss Petitioner's amended petition for lack

527of standing.

529On November 3, 2000, NRSWA submitted its response to DEP's

539RAI, which included the statement:

544Please note the permit modification

549application for the bioreactor construction

554and operation, DEP File Number

5590013500 -004 -SC, is currently under review by

567Department. It is understood that the

573previously submitted bioreactor information

577is to be incorporated in the renewed permit.

585DEP entered its Final Order dismissing Case No. 00-3448 on

595December 4, 2000. On December 12, 2000, DEP issued Permit

605Number 001-3500004-SC to NRSWA for the bioreactor modification.

613This permit provided in pertinent part:

619This modification shall remain in effect as

626long as the underlying permit, SC63-271982,

632is in effect. The underlying permit will

639remain in effect until final agency action

646is taken on the renewal application of that

654permit . . . .

659Petitioner did not appeal the Final Order in Case No. 00-3448.

670On February 15, 2001, DEP gave notice of intent to renew

681NRSWA's permit for continued operation of its landfill. DEP's

690draft permit incorporated specific conditions addressing the

697construction and operation of the bioreactor system.

704On February 28, 2001, the Petitioner filed a verified

713Petition for Administrative Hearing concerning DEP's proposed

720agency action with respect to NRSWA's application for the

729renewal of Permit No. SC63-0271982. DEP referred this petition

738to DOAH on March 14, 2001, where it was given D OAH Case

751No. 01-1033.

753On March 19, 2001, NRSWA filed a Motion to Dismiss Petition

764for Administrative Hearing and a Motion for Attorney Fees and

774Costs. On April 9, 2001, DEP filed its Motion to Dismiss

785Verified Petition for Administrative Hearing.

790NRSWA's Motion for Attorney Fees and Costs was based on

800both Section 120.595(1) and Section 120.569(2)(e). NRSWA's

807motion to dismiss was based on standing and res judicata . DEP's

819motion was based only on res judicata . The res judicata

830arguments were that the Petition for Administrative Hearing in

839Case No. 01-1033 challenged the bioreactor modification which

847was decided in Case No. 00-3448. Petitioner filed responses in

857opposition to all three motions, and a telephone hearing was

867held on the motions to dismiss on April 25, 2001.

877On May 1, 2001, an Order Denying Motions to Dismiss was

888entered. However, the Order Denying Motions to Dismiss noted a

898discrepancy between allegations in the Petition for

905Administrative Hearing and Petitioner's argument on the motions

913to dismiss, and Petitioner was instructed to amend his pleading

923if he intended the Petition for Administrative Hearing in this

933case to challenge renewal of the modified underlying landfill

942permit under the standards of Rule 62-701.330(3)(a).

949There was no hearing or ruling on NRSWA's Motion for

959Attorney Fees and Costs.

963On May 3, 2001, a Notice of Hearing was issued, based on

975responses to the Initial Order and other input given during the

986telephone hearing on April 25, 2001. Final hearing was

995scheduled for June 4-6, 2001, in Gainesville, Florida. An Order

1005of Pre-Hearing Instructions requiring a pre-hearing stipulation,

1012among other things, also was entered.

1018On May 8, 2001, an Amendment to Petition for Administrative

1028Hearing was filed clarifying Petitioner's challenge to renewal

1036of the modified underlying landfill permit under the standards

1045of Rule 62-701.330(3)(a).

1048Also on May 8, 2001, NRSWA filed a Motion to Require

1059Petitioner to Post a Bond to secure payment of the prevailing

1070party attorney fees and costs award anticipated by NRSWA under

1080Section 403.412(2)(f). Petitioner filed a response in

1087opposition, and the motion was heard by telephone on May 22,

10982001 (along with other prehearing case management matters.) At

1107the hearing, DEP indicated its opposition to the motion to

1117require bond.

1119On May 21, 2001, NRSWA filed a Motion in Limine .

1130Petitioner filed a response in opposition (along with a

"1139preamble related to the motion and its impact on case

1149management"), and DEP filed a response in support of the Motion

1161in Limine . Essentially, NRSWA and DEP sought to limit the

1172issues for final hearing to those identified in the Order

1182Denying Motions to Dismiss as reasons why the doctrine of res

1193judicata did not bar the Petition for Administrative Hearing. A

1203combination hearing/prehearing conference was held by telephone

1210on May 30, 2001.

1214On May 31, 2001, an Order Denying Bond and an Order Denying

1226Motion in Limine were entered.

1231On June 1, 2001 , the parties filed a Joint Prehearing

1241Stipulation, which identified three issues of fact and five

1250issues of law remaining for determination, including:

1257(1) whether NRSWA requested, as part of its application for

1267renewal of its existing operating permit, that the bioreactor

1276system be included [as] part of the renewal permit; and (2)

1287whether the prevailing party is entitled to attorney fees under

1297Chapter 403 and/or 120, Florida Statutes. Also, NRSWA's Motion

1306for Attorney Fees and Costs was listed as a pending motion.

1317At final hearing, NRSWA called Frank Darabi, its

1325professional engineer, and had Respondent's Exhibits 1 through

133311 admitted in evidence. (Respondent's Exhibits 10 and 11, the

1343existing permit for cells 1 and 2 and the existing permit for

1355cell 3, were to have been late-filed by DEP post-hearing but

1366have not been filed.) Petitioner called two DEP employees

1375(Mary Nogas, a professional engineer, and Richard Dasher, a

1384geologist) and testified in his own behalf. He also had

1394Petitioner's Exhibits 1, 2, 9, 10, and 15 admitted in evidence.

1405Objections to Petitioner's expert testimony in his own behalf

1414were sustained; objections to the admission of alleged learned

1423treatises were sustained for lack of sufficient evidence that

1432the treatises were authoritative. Petitioner then called

1439Darabi, who was recalled by NRSWA in rebuttal.

1447After presentation of evidence, Petitioner announced that

1454he was withdrawing all issues except for the issue whether NRSWA

1465properly applied for renewal of the bioreactor modification

1473permit as part of the renewal application so as to allow

1484inclusion of the bioreactor modification in the renewal permit.

1493After Petitioner's announcement, NRSWA moved to reopen the

1501evidentiary record for additional rebuttal testimony on the sole

1510remaining issue. Petitioner's objection that the witness was

1518not on NRSWA's witness list was sustained because the testimony

1528would not qualify as rebuttal.

1533No party ordered a transcript of final hearing, and the

1543parties were given ten days (until June 15, 2001) in which to

1555file proposed recommended orders (PROs).

1560Petitioner filed his PRO on June 13, 2001. On June 14,

15712001, NRSWA filed a Motion for Extension of Time until June 20,

15832001, to file PROs; the motion indicated DEP's concurrence and

1593joinder, as well as NRSWA's inability to contact Petitioner. On

1603June 15, 2001, NRSWA filed an Amended Motion for Extension of

1614Time elaborating on its grounds and indicating Petitioner's

1622objection. NRSWA also timely filed its PRO on June 15, 2001.

1633DEP then filed an Addendum to Amended Motion for Extension

1643of Time. The Addendum elaborated on DEP's grounds for an

1653extension, indicated that counsel for DEP would attempt to file

1663DEP's PRO by June 20, 2001, and represented that DEP would not

1675review Petitioner's PRO before filing its PRO. On June 15,

16852001, Petitioner filed a response in opposition to an extension

1695of time for either NRSWA or DEP. DEP filed its PRO on June 20,

17092001.

1710Based on the filings, and the lack of any prejudice to

1721Petitioner, DEP's extension is granted over objection, and all

1730PRO's have been considered.

1734NRSWA's PRO included a request for attorney fees and costs

1744under Section 120.595(1) and Section 403.412(2)(f). NRSWA did

1752not specifically renew its Motion for Attorney Fees and Costs

1762under Section 120.569(2)(e).

1765FINDINGS OF FACT

17681. NRSWA is comprised of Union, Baker, and Bradford

1777Counties and was formed to share the costs associated with solid

1788waste disposal. NRSWA owns and operates the New River Regional

1798Landfill in Union County. The landfill was initially permitted

1807in 1990 and was expanded and the original permit renewed in 1995

1819for an additional five years, expiring on November 6, 2000. The

1830landfill now has a permit for disposal of Class I waste in three

1843cells, with a fourth under design; it also has a permit for

1855disposal of Class III waste and a permit for a waste tire

1867collection center.

18692. Cells 1 and 2 were retired, and in July 1999 NRSWA

1881applied to modify its operating permit ( Permit No. SC63-271982)

1891to allow construction and operation of a bioreactor landfill

1900system on retired cells 1 and 2. On June 26, 2000, DEP gave

1913notice of its intent to issue NRSWA a permit modification to

1924construct and operate the bioreactor system.

19303. On July 11, 2000, Petitioner, Paul Still, timely filed

1940a Petition for Administrative Hearing to challenge DEP's

1948proposed agency action. On August 15, 2000, DEP referred the

1958matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned

1970an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the

1983Petition for Administrative Hearing for lack of standing.

19914. On September 8, 2000, NRSWA applied to DEP for renewal

2002of Permit No. SC63-271982 for continued operation of its

2011landfill. The renewal application requested that all landfill

2019permits be consolidated into the renewal permit as a single

2029operating permit. However, at the time Case No. 00-3448 on the

2040bioreactor modification application remained pending, and the

2047renewal application did not specify the bioreactor modification

2055as part of the renewal application.

20615. Frank Darabi, NRSWA's professional engineer, signed a

2069transmittal letter on September 7, 2000; arranged for delivery

2078of the application to DEP's Northeast District office in

2087Jacksonville, Florida; and thought it was delivered and left

2096there after-hours on September 7, 2000. But NRSWA did not p rove

2108that the renewal application was submitted to DEP before

2117September 8, 2000, when it was filed-stamped.

21246. The renewal application was submitted on DEP FORM 62-

2134701.900(1). The application was signed on the behalf of NRSWA

2144by Darrell O'Neal, its Executive Director. By this signature on

2154the form, O'Neal swore that all statements in the application

2164were true, correct, and complete and agreed on behalf of NRSWA

2175to comply with applicable statutes and DEP rules. The

2184application was also signed, sealed and dated by Frank Darabi,

2194as professional engineer. Darabi's signature certified that all

2202engineering features in the application were "designed/examined

2209by me and found to conform to engineering principals [sic]

2219applicable to such facilities."

22237. On September 18, 2000, the ALJ in Case No. 00-3448

2234entered an Order Granting Motion to Dismiss with Leave to Amend.

2245The ALJ held that the allegations in the Petition for

2255Administrative Hearing failed to demonstrate that the Petitioner

" 2263ha[d] sustained, or [wa]s in the immediate danger of sustaining

2273some direct injury as a result of the proposed agency action."

2284The ALJ granted Petitioner leave to amend as to standing.

22948. On September 26, 2000, Petitioner filed an Amended

2303Petition for Administrative Hearing in Case No. 00-3448, which

2312included new allegations in an attempt to address the question

2322of Petitioner's standing. On October 5, 2000, NRSWA filed a

2332Motion to Dismiss the Amended Petition for Administrative

2340Hearing. NRSWA asserted that the Amended Petition for

2348Administrative Hearing failed to sufficiently allege

2354Petitioner's standing.

23569. On October 6, 2000, DEP issued a Request for Additional

2367Information (RAI) as to the renewal application. The RAI did

2377not ask for any information concerning the pending bioreactor

2386modification application.

238810. On October 20, 2000, the ALJ in Case No. 00-3448

2399granted NRSWA's motion to dismiss Petitioner's amended petition

2407in that case, finding that the amended petition " ha[d] set forth

2418no new allegations sufficient for a presumption of standing to

2428initiate and sustain these proceedings."

243311. On November 3, 2000, NRSWA submitted its response to

2443DEP's RAI, which included the statement:

2449Please note the permit modification

2454application for the bioreactor construction

2459and operation, DEP File Number

24640013500 -004 -SC, is currently under review by

2472Department. It is understood that the

2478previously submitted bioreactor information

2482is to be incorporated in the renewed permit.

2490This statement was included after Darabi asked DEP and was told

2501that it would be appropriate to include information about the

2511pending bioreactor modification application in the response to

2519RAI although not asked for in the RAI.

252712. NRSWA's response to RAI was signed by Darabi, with a

2538copy to O'Neal. Darabi's signature did not make representations

2547or certifications like those provided for in DEP FORM 62-

2557701.900(1). However, Darabi had been NRSWA's professional

2564engineer since its inception, had signed numerous application

2572submissions on behalf of NRSWA over the years, and clearly had

2583authorization to submit the response to RAI.

259013. DEP entered its Final Order dismissing Case No.

259900-3448 on December 4, 2000. On December 12, 2000, DEP issued

2610Permit Number 001-3500004-SC to NRSWA for the bioreactor

2618modification. This permit provided in pertinent part:

2625This modification shall remain in effect as

2632long as the underlying permit, SC63-271982,

2638is in effect. The underlying permit will

2645remain in effect until final agency action

2652is taken on the renewal application of that

2660permit . . . .

2665Petitioner did not appeal the Final Order in Case No. 00-3448.

267614. Following review of the additional information

2683submitted by NRSWA on its renewal application, DEP deemed the

2693permit application complete as of November 3, 2000. Additional

2702information was submitted in January 2001, including a request

2711submitted on January 11 that the bioreactor modification part of

2721the renewal permit address specific conditions omitted from the

2730modification permit issued on December 12, 200 0.

273815. On February 15, 2001, DEP gave notice of intent to

2749renew NRSWA's permit for continued operation of its landfill.

2758DEP's draft permit incorporated specific conditions addressing

2765the construction and operation of the bioreactor system, as well

2775as all other permitted landfill activities.

278116. The evidence is clear that, since November 3, 2000,

2791NRSWA consistently has taken the position that the bioreactor

2800system modification was included in its renewal application.

2808Alleged Improper Purpose

281117. The evidence did not prove that Petitioner

2819participated in this proceeding for an improper purpose-- i.e . ,

2829primarily to harass or to cause unnecessary delay or for

2839frivolous purpose or to needlessly increase the cost of

2848licensing or securing the approval of NRSWA's permit renewal

2857applications. To the contrary, the evidence was that Petitioner

2866participated in this proceeding in an attempt to raise

2875justifiable issues as to why NRSWA's permit renewal application,

2884with bioreactor landfill system in cells 1 and 2, should not be

2896granted. Petitioner failed in his attempts in large part

2905because several issues he wanted to litigate were outside the

2915scope of a permit renewal application and because he had no

2926expert testimony on issues he was allowed to raise. At that

2937point, Petitioner announced he was dropping all issues but one.

2947The sole remaining issue after Petitioner's announcement might

2955be viewed as a procedural technicality bordering on being

2964frivolous. But it arose out of the complex (as DEP described

2975it, "muddled") procedural history. Under these circumstances,

2983it is not found that Petitioner's continued litigation of his

2993sole remaining issue was frivolous.

2998CONCLUSIONS OF LAW

300118. With regard to NRSWA's application for the renewal of

3011its existing operating permit, Section 120.60(4) provides in

3019pertinent part:

3021When a licensee has made timely and

3028sufficient application for the renewal of a

3035license which does not automatically expire

3041by statute, the existing license shall not

3048expire until the application for renewal has

3055been finally acted upon by the agency . . .

3065.

306619. With regard to its review of applications for the

3076renewal of permits, Rule 62-4.090 generally requires that an

3085application for the renewal of an operating permit must be

3095submitted at least 60 days prior to the expiration of the

3106permit; but where, as in this case, the renewal application was

3117not submitted at least 60 days prior to the expiration of the

3129underlying permit, the rule provides:

3134If the renewal application is submitted at a

3142later date, it will not be considered timely

3150and sufficient unless it is submitted and

3157made complete prior to the expiration of the

3165operation permit. When the application for

3171renewal is timely and sufficient, the

3177existing permit shall remain in effect until

3184the renewal application has been finally

3190acted upon by Department.

319420. Petitioner does not challenge DEP's determination that

3202NRSWA permit application was timely and sufficient under the

3211above-referenced rule. It necessarily follows that NRSWA's

3218existing permit remains in effect pending final agency action by

3228DEP on the renewal application.

323321. Petitioner's sole remaining contention in this case is

3242that NRSWA failed to properly request that the bioreactor permit

3252be included as part of the application for the renewal of the

3264existing operating permit. There are several reasons why this

3273contention has no merit.

327722. The renewal application filed on September 8, 2000,

3286was not required to include the construction and operation of

3296the bioreactor system because NRSWA did not have a solid waste

3307permit for the bioreactor system at the time. Even when NRSWA

3318responded to DEP's RAI on November 3, 2000 (and the application

3329was complete, timely, and sufficient), DEP still had not taken

3339final agency action with respect to the permit modification for

3349the bioreactor system. Clearly, NRSWA was not required to apply

3359for renewal of a permit that did not yet exist.

336923. Petitioner's argument also fails because NRSWA's

3376response to DEP's RAI requested that DEP include the bioreactor

3386in its consideration and review of the application for the

3396renewal permit. In light of the complicated, "muddled"

3404procedural history circumstances surrounding the submittal and

3411review of the bioreactor and renewal permit applications, the

3420request in the response to RAI to include the bioreactor permit

3431in the renewal application was not inappropriate.

343824. Petitioner maintains that the procedure utilized by

3446NRSWA and DEP to incorporate the bioreactor permit into the

3456renewal application technically was fatally flawed in that the

3465sworn verification in the renewal application did not

3473specifically refer to the bioreactor system and there has been

3483no subsequent sworn verification such as the one contained in

3493DEP FORM 62-701.900(1) specifically referring to the bioreactor

3501system. But it has been clear at least since November 3, 2000,

3513up through and including Darabi's sworn testimony at final

3522hearing, that NRSWA has wanted the bioreactor permit, which

3531bears an expiration date tied to expiration of the underlying

3541permit, to be included in the renewal application. Since this

3551is a de novo proceeding, the evidence at final hearing should be

3563permitted to serve the purpose of the DEP FORM 62-701.900(1)

3573verification. The evidence is clear that: (a) NRSWA's

3581application for the renewal permit was timely and sufficient;

3590(b) NRSWA's underlying permit remains valid and in effect

3599pending final agency action on the renewal application; (c)

3608NRSWA has already received a permit modification which

3616authorizes the construction and operation of the bioreactor

3624system; (d) the bioreactor permit remains valid and in effect

3634pending final agency action on the renewal permit application;

3643and (e) DEP's proposed agency action in this proceeding merges

3653the bioreactor permit and the renewal permit into a single solid

3664waste permit.

366625. Even if there were a technical defect in the renewal

3677application, such a defect should not be considered fatal, and

3687denying renewal of the bioreactor permit would not be the

3697appropriate remedy. Instead, such a technical defect easily can

3706be cured by requiring as an additional special condition that

3716NRSWA supply a sworn verification like the one contained in DEP

3727FORM 62-701.900(1) specifically referring to the bioreactor

3734system.

3735Requests for Attorney Fees and Costs

374126. Prior to final hearing, NRSWA moved for attorney fees

3751and costs under Sections 120.569(2)(e) and 120.595(1). At final

3760hearing, NRSWA indicated that it would be seeking attorney fees

3770and costs without specifying the grounds. Post-hearing, NRSWA

3778requested attorney fees and costs under Section 120.595(1) and

3787Section 403.412(2)(f); NRSWA did not specifically renew its

3795Motion for Attorney Fees and Costs under Section 120.569(2)(e).

380427. Jurisdiction will be reserved to determine the request

3813under Section 120.569(2)(e) because DOAH has jurisdiction to

3821enter the final order under that statute . See Procacci

3831Commercial Realty, Inc. v. Dept. of Health and Rehab. Services ,

3841690 So. 2d 603, 606 (Fla. 1st DCA 1997); Dept. of Health and

3854Rehab. Services v. S.G. , 613 So. 2d 1380, 1384-85 (Fla. 1st DCA

38661993) .

386828. While Section 120.569(2)(e) and Section 120.595(1) are

3876similar and related, the procedures (and, to some extent,

3885substantive law) are different. Section 120.595(1) provides in

3893pertinent part:

3895(a ) The provisions of this subsection are

3903supplemental to, and do not abrogate, other

3910provisions allowing the award of fees or

3917costs in administrative proceedings.

3921(b ) The final order in a proceeding

3929pursuant to s. 120.57(1) shall award

3935reasonable costs and a reasonable attorney's

3941fee to the prevailing party only where the

3949nonprevailing adverse party has been

3954determined by the administrative law judge

3960to have participated in the proceeding for

3967an improper purpose.

3970(c ) In proceedings pursuant to

3976s. 120.57 (1), and upon motion, the

3983administrative law judge shall determine

3988whether any party participated in the

3994proceeding for an improper purpose as

4000defined by this subsection and s.

4006120.569(2)(e). In making such

4010determination, the administrative law judge

4015shall consider whether the nonprevailing

4020adverse party has participated in two or

4027more other such proceedings involving the

4033same prevailing party and the same project

4040as an adverse party and in which such two or

4050more proceedings the nonprevailing adverse

4055party did not establish either the factual

4062or legal merits of its position, and shall

4070consider whether the factual or legal

4076position asserted in the instant proceeding

4082would have been cognizable in the previous

4089proceedings. In such event, it shall be

4096rebuttably presumed that the nonprevailing

4101adverse party participated in the pending

4107proceeding for an improper purpose.

4112(d ) In any proceeding in which the

4120administrative law judge determines that a

4126party participated in the proceeding for an

4133improper purpose, the recommended order

4138shall so designate and shall determine the

4145award of costs and attorney's fees.

4151(e ) For the purpose of this subsection:

41591. "Improper purpose" means

4163participation in a proceeding

4167pursuant to s. 120.57(1) primarily

4172to harass or to cause unnecessary

4178delay or for frivolous purpose or

4184to needlessly increase the cost of

4190licensing or securing the approval

4195of an activity.

4198(Emphasis added.)

420029. The "definition" of improper purpose in Section

4208120.569(2)(e) is not identical to the definition in Section

4217120.595(1)(e )1. Section 120.569(2)(e) provides that signatures

4224on pleadings, motions, or other papers certify that the

4233signatory has read the document and that "based upon reasonable

4243inquiry, it is not interposed for any improper purposes, such as

4254to harass or to cause unnecessary delay, or for frivolous

4264purpose or needless increase in the cost of litigation."

427330. Construing the definition in Section 120.595(1)(e )1 in

4282pari materia with the "definition" in Section 120.569(2)(e), it

4291is concluded that Section 120.595(1) only references the

4299examples of improper purposes cited in Section 120.569(2)(e),

4307but that participation in a proceeding is for an improper

4317purpose under Section 120.595(1) only if it is " primarily to

4327harass or to cause unnecessary delay or for frivolous purpose or

4338to needlessly increase the cost of licensing or securing the

4348approval of an activity." (If such a limitation on the

4358definition is not part of Section 120.569(2)(e), Section

4366120.595(1)(a) provides that its provisions are "supplemental to,

4374and do not abrogate, other provisions allowing the award of fees

4385or costs in administrative proceedings.")

439131. There is no evidence or indication that the rebuttable

4401presumption of improper purpose created by Section 120.595(1)(c)

4409applies in this case. According to the evidence, Petitioner

4418participated in only one other such proceeding involving NRSWA

4427and its project in which Petitioner did not establish either the

4438factual or legal merits of his position.

444532. Case law holds that an objective standard is used to

4456determine improper purpose for the purpose of imposing sanctions

4465on a party or attorney under Section 120.569(2)(e) and

4474predecessor statutes. As stated in Friends of Nassau County,

4483Inc. v. Nassau County , 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000):

4496In the same vein, we stated in Procacci

4504Commercial Realty, Inc. v. Department of

4510Health and Rehabilitative Services , 690

4515So.2d 603 (Fla. 1st DCA 1997):

4521The use of an objective standard

4527creates a requirement to make

4532reasonable inquiry regarding

4535pertinent facts and applicable

4539law. In the absence of "direct

4545evidence of the party's and

4550counsel's state of mind, we must

4556examine the circumstantial

4559evidence at hand and ask,

4564objectively, whether an ordinary

4568person standing in the party's or

4574counsel's shoes would have

4578prosecuted the claim."

4581Id. at 608 n. 9 (quoting Pelletier v.

4589Zweifel , 921 F.2d 1465, 1515 (11th

4595Cir.1991)). See In re Sargent , 136 F.3d

4602349, 352 (4th Cir.1998) ("Put differently a

4610legal position violates Rule 11 if it 'has

"4618absolutely no chance of success under the

4625existing precedent." ') Brubaker v. City of

4632Richmond , 943 F.2d 1363, 1373 (4th

4638Cir.1991)(quoting Cleveland Demolition Co.

4642v. Azcon Scrap Corp. , 827 F.2d 984, 988 (4th

4651Cir.1987))."[)]

4653* * *

4656Whether [predecessor to Section 120.595(1)]

4661section 120.57(1)(b )5., Florida Statutes

4666(1995), authorizes sanctions for an initial

4672petition in an environmental case turns

4678. . . on the question whether the signer

4687could reasonably have concluded that a

4693justiciable controversy existed under

4697pertinent statutes and regulations. If,

4702after reasonable inquiry, a person who

4708reads, then signs, a pleading had

"4714reasonably clear legal justification" to

4719proceed, sanctions are inappropriate.

4723Procacci , 690 So.2d at 608 n. 9; Mercedes ,

4731560 So.2d at 278.

4735Although there is no appellate decision explicitly extending the

4744objective standard to Section 120.595(1), there does not appear

4753to be any reason why, absent the rebuttable presumption, the

4763objective standard should not be used to determine whether

4772Petitioner's participation in this proceeding was for an

4780improper purpose. See Friends Of Nassau County, Inc., v. Fisher

4790Development Co., et al. , 1998 WL 929876 (Fla. Div. Admin.

4800Hrgs.); Amscot Insurance, Inc., et al. v. Dept. of Ins. , 1998 WL

4812866225 (Fla. Div. Admin. Hrgs.).

481733. In another appellate decision, decided before the

4825objective standard was enunciated for cases under Section

4833120.569(2)(e) and its predecessor statutes, the court in Burke

4842v. Harbor Estates Ass'n , 591 So. 2d 1034, 103 6-1037 (Fla. 1st

4854DCA 1991), held:

4857The statute is intended to shift the cost of

4866participation in a Section 120.57(1)

4871proceeding to the nonprevailing party if the

4878nonprevailing party participated in the

4883proceeding for an improper purpose. A party

4890participates in the proceeding for an

4896improper purpose if the party's primary

4902intent in participating is any of four

4909reasons, viz : to harass, to cause

4916unnecessary delay, for any frivolous

4921purpose, [FN1] or to needlessly increase the

4928prevailing party's cost of securing a

4934license or securing agency approval of an

4941activity.

4942Whether a party intended to participate in a

4950Section 120.57(1) proceeding for an improper

4956purpose is an issue of fact. See Howard

4964Johnson Company v. Kilpatrick , 501 So.2d 59,

497161 (Fla. 1st DCA 1987) (existence of

4978discriminatory intent is a factual issue);

4984School Board of Leon County v. Hargis , 400

4992So.2d 103, 107 (Fla. 1st DCA 1981)

4999(questions of credibility, motivation, and

5004purpose are ordinarily questions of fact).

5010The absence of direct evidence of a party's

5018intent does not convert the issue to a

5026question of law. Indeed, direct evidence of

5033intent may seldom be available. In

5039determining a party's intent, the finder of

5046fact is entitled to rely upon permissible

5053inferences from all the facts and

5059circumstances of the case and the

5065proceedings before him.

5068FN1. A frivolous purpose is one which is of

5077little significance or importance in the

5083context of the goal of administrative

5089proceedings. Mercedes Lighting & Electrical

5094Supply, Inc. v. Department of General

5100Services , 560 So.2d 272, 278 (Fla. 1st DCA

51081990).

510934. Burke also is of interest because it involves facts

5119similar in some respects to the facts of this case. According

5130to Burke , the hearing officer found:

51366. Petitioner . . . submitted no evid ence

5145to show facts necessary to sustain the

5152pleadings in the Petition. . . . Petitioner

5160offered no expert testimony in support of

5167the pleadings in the Petition. . . . The

5176testimony of fact witnesses called by

5182Petitioner was not material to Petitioner's

5188claims. . . .

51927. Petitioner consistently demonstrated a

5197lack of knowledge of the applicable law, the

5205proper scope of the formal hearing, and the

5213distinction between argument and evidence.

5218Petitioner repeatedly attempted to establish

5223violations of laws not relevant to the

5230proceeding. . . . Petitioner attempted to

5237establish issues by arguing with witnesses

5243during direct and cross-examination, and by

5249repeatedly making unsworn ore tenus

5254representations of fact.

52578. There was a complete absence of

5264justiciable issue of either law or fact in

5272this proceeding because petitioner failed to

5278show facts necessary to sustain the

5284pleadings. Petitioner presented no evidence

5289refuting Respondent, Burke's, showing that

5294the modifications required by DER were

5300adequate to assure water quality and the

5307public health, safety, or welfare, or the

5314property of others. Evidence presented by

5320Petitioner was not material to the issue of

5328whether the modifications required by DER

5334were adequate for the purposes of the law

5342applicable to this proceeding. Therefore,

5347Petitioner participated in this proceeding

5352for a frivolous purpose, primarily to cause

5359unnecessary delay, or to needlessly increase

5365the cost of licensing or approval of the

5373proposed activity.

5375Id. at 1035-1036. (For reasons unknown, there are minor

5384discrepancies between the court's version of the findings and

5393those appearing at Harbor Estates Associates, Inc. v. E. Burke,

5403et al. , 1990 WL 749394 (Fla. Div. Admin. Hrgs.), and at DOAH's

5415Internet website, Recommended Order, DOAH Case No. 89-2741,

5423entered April 4, 1990.) In Burke , the Department of

5432Environmental Regulation (predecessor to DEP) accepted the

5439hearing officer's findings as to Petitioner's conduct but

5447reversed the hearing officer's award, holding "that the conduct

5456described in the recommended order cannot, as a matter of law,

5467evince an improper purpose as defined in Section 120.59(6),

5476Florida Statutes." Burke at 1037. The court reversed, holding:

5485Despite acceptance of factual findings

5490below, the final order characterizes the

5496conduct of Harbor Estates' representative as

5502mere "incompetent representation." We

5506reject that characterization as not

5511consistent with the hearing officer's

5516findings and, therefore, do not here decide

5523whether incompetent representation alone

5527permits a finding of improper purpose.

5533* * *

5536We reject appellees' argument that a

5542qualified lay representative in a Section

5548120.57 proceeding should be held to a lesser

5556standard of conduct, as distinguished from

5562legal competence, than a licensed attorney .

5569Section 120.62(2), Florida Statutes,

5573permitting qualified lay representatives to

5578represent parties in administrative

5582proceedings, provides no basis for holding

5588such representatives to a lesser standard of

5595conduct. A contrary rule would permit a

5602party to insulate itself from the

5608consequences of Section 120.59(6), Florida

5613Statutes, by choosing lay representation.

5618Id. at 1037-1038.

562135. As indicated, the facts in Burke were similar in some

5632respects to the facts of this case, but they are not identical.

5644First, Petitioner was not represented by a qualified lay person;

5654he appeared pro se . Second, there was no evidence that

5665Petitioner repeatedly attempted to establish violations of laws

5673not relevant to the proceeding, argued with witnesses, or

5682repeatedly made unsworn ore tenus representations of fact during

5691direct and cross-examination of witnesses. To the contrary,

5699Petitioner accepted and reacted appropriately to adverse

5706rulings, particularly as to the issues for determination on

5715permit renewal and his lack of qualifications to give relevant

5725expert opinion testimony. Indeed, he announced at the close of

5735the evidence that he was dropping all issues except one.

574536. Granted, the sole remaining issue after Petitioner's

5753announcement might be viewed as a procedural technicality

5761bordering on being frivolous. But it is concluded that, arising

5771as it did from the complex, "muddled" procedural history, the

5781issue was justifiable and not frivolous. Under the totality of

5791circumstances, it was not proven that Petitioner's participation

5799in this proceeding was for an improper purpose-- i.e . , primarily

5810to harass or to cause unnecessary delay or for frivolous purpose

5821or to needlessly increase the cost of licensing or securing the

5832approval of NRSWA's permit renewal applications.

583837. NRSWA also seeks attorney fees and costs under Section

5848403.412(2)(f). This statute entitles the prevailing party or

5856parties to costs and attorney's fees "in any action instituted

5866pursuant to this section . . .." But notwithstanding the

5876statute's use of the word "section," it is concluded that those

5887provisions do not apply to administrative actions brought under

5896Section 403.412(5). See West Volusia Conservancy, Inc., v.

5904Bayou Arbors, Inc. and Dept. of Environmental Reg. , DOAH Case

591486-2463, 1987 WL 62066 (Fla. DER 1987). In this context, the

5925Division of Administrative Hearings (DOAH) is not a "court."

5934See State ex rel. Chiles v. Public Employees Relations Com'n ,

5944630 So. 2d 1093 ( Fla. 1994)(PERC not a "court") ; Dept. of

5957Revenue v. WHI Ltd. Partnership , 754 So. 2d 205, (Fla. 1st DCA

59692000)(DOAH not a "court of competent jurisdiction") ; Florida

5978State University v. Hatton , 672 So. 2d 576, (Fla. 1st DCA

59891996)( same).

5991RECOMMENDATION

5992Based upon the foregoing Findings of Fact and Conclusions

6001of Law, it is

6005RECOMMENDED that DEP enter a final order: (1) dismissing

6014the verified Petition for Administrative Hearing ; (2) granting

6022NRSWA's application to renew Permit No. SC63-271982, as set

6031forth in the draft permit-- i.e . , for merger and continued

6042operation of all existing landfill operations, including NRSWA's

6050Class III waste disposal permit, its permit for a waste tire

6061collection center, and its permit for the bioreactor landfill

6070system on cells 1 and 2; and (3) denying NRSWA's request for

6082attorney fees and costs from Petitioner under Section 120.595(1)

6091and Section 403.312(2)(f).

6094Jurisdiction is reserved to enter a final order on NRSWA's

6104Motion for Attorney Fees and Costs under Section 120.569(2)(e),

6113to the extent that it has been preserved.

6121DONE AND ENTERED this 7th day of August, 2001, in

6131Tallahassee, Leon County, Florida.

6135___________________________________

6136J. LAWRENCE JOHNSTON

6139Administrative Law Judge

6142Division of Administrative Hearings

6146The DeSoto Building

61491230 Apalachee Parkway

6152Tallahassee, Florida 32399-3060

6155(850) 488- 9675 SUNCOM 278-9675

6160Fax Filing (850) 921-6847

6164www.doah.state.fl.us

6165Filed with the Clerk of the

6171Division of Administrative Hearings

6175this 7th day of August, 2001.

6181COPIES FURNISHED :

6184W. Douglas Beason, Esquire

6188Department of Environmental Protection

61923900 Commonwealth Boulevard

6195The Douglas Building, Mail Station 35

6201Tallahassee, Florida 32399-3000

6204Paul Still

6206Route 4 Box 1297H

6210Starke, Florida 32091

6213Jonathan F. Wershow, Esquire

6217Post Office Box 1260

6221Gainesville, Florida 32602

6224Kathy C. Carter, Agency Clerk

6229Office of General Counsel

6233Department of Environmental Protection

62373900 Commonwealth Boulevard, Mail Station 35

6243Tallahassee, Florida 32399-3000

6246Teri L. Donaldson, General Counsel

6251Department of Environmental Protection

62553900 Commonwealth Boulevard, Mail Station 35

6261Tallahassee, Florida 32399-3000

6264David B. Struhs, Secretary

6268Department of Environmental Protection

62723900 Commonwealth Boulevard

6275The Douglas Building

6278Tallahassee, Florida 32399-3000

6281NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6287All parties have the right to submit written exceptions within 15

6298days from the date of this Recommended Order. Any exceptions to

6309this Recommended Order should be filed with the agency that will

6320issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/10/2001
Proceedings: Final Order filed.
PDF:
Date: 09/06/2001
Proceedings: Agency Final Order
PDF:
Date: 08/07/2001
Proceedings: Other
PDF:
Date: 08/07/2001
Proceedings: Recommended Order
PDF:
Date: 08/07/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/07/2001
Proceedings: Order Denying Sanctions Under Section 120.569(2)(e) issued.
PDF:
Date: 08/07/2001
Proceedings: Recommended Order issued (hearing held June 4 through 5, 2001) CASE CLOSED.
PDF:
Date: 07/20/2001
Proceedings: Notice of Unavalability filed by New River Solid Waste Association
PDF:
Date: 06/20/2001
Proceedings: Department of Environmental Protection`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 06/18/2001
Proceedings: Paul Still`s Response to June 14 and 15, 2001 Filings (filed via facsimile).
PDF:
Date: 06/15/2001
Proceedings: (Proposed) Order Denying All Relief Requested in Petition for Administrative Hearing filed by Paul Still and Granting New River Solid Waste Association`s Attorney`s Fees and Costs (filed via facsimile).
PDF:
Date: 06/15/2001
Proceedings: Addendum to Amended Motion for Extension of Time (filed via facsimile).
PDF:
Date: 06/15/2001
Proceedings: Amended Motion for Extension of Time (filed by Respondent via facsimile).
PDF:
Date: 06/14/2001
Proceedings: (Proposed) Order Extending Time (filed by Respondent via facsimile).
PDF:
Date: 06/14/2001
Proceedings: Motion for Extension of Time (to file proposed recommended order) filed by Respondent via facsimile.
PDF:
Date: 06/13/2001
Proceedings: Paul Still`s Proposed Recommended Order filed.
Date: 06/04/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 06/01/2001
Proceedings: Joint Prehearing Stipulation (filed via facsimile).
PDF:
Date: 05/31/2001
Proceedings: Order Denying Bond issued.
PDF:
Date: 05/31/2001
Proceedings: Order Denying Motion in Limine issued.
PDF:
Date: 05/29/2001
Proceedings: Department of Environmental Protection`s Response to NRSWA`s Motion in Limine (filed via facsimile).
PDF:
Date: 05/29/2001
Proceedings: Paul Still`s Responses to the Order of Pre-hearing Instructions (filed via facsimile).
PDF:
Date: 05/25/2001
Proceedings: Paul Still`s Response to the New River Solid Waste Association`s Motion in Limine with a Preamble Related to the Motion and It`s Impact on Case Management filed.
PDF:
Date: 05/25/2001
Proceedings: Notice of Hearing (Motion hearing set for May 30, 2001; 1:00 P. M.) filed.
PDF:
Date: 05/23/2001
Proceedings: Notice of Hearing (Case Management Conference set for May 22, 2001, 4:00 p.m.) filed by J. Wershow
PDF:
Date: 05/21/2001
Proceedings: Notice of Filing (Affidavit, of F. Darabi, P. E.) filed.
PDF:
Date: 05/21/2001
Proceedings: New River Solid Waste Association`s Motion in Limine (filed via facsimile).
PDF:
Date: 05/14/2001
Proceedings: Notice of Hearing (Motion Hearing set for May 22, 2001; 4:00 p. m.) filed.
PDF:
Date: 05/14/2001
Proceedings: Paul Still`s Response to New River Solid Waste Association`s Motion to Require Petitioner to Post a Bond filed.
PDF:
Date: 05/08/2001
Proceedings: Amendment to Paul Still`s Petition for Administrative Hearing filed.
PDF:
Date: 05/08/2001
Proceedings: Motion to Require Petitioner to Post a Bond filed by J. Wershow.
PDF:
Date: 05/03/2001
Proceedings: Notice of Hearing issued (hearing set for June 4 through 6, 2001; 10:30 a.m.; Gainesville, FL).
PDF:
Date: 05/03/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 05/01/2001
Proceedings: Order Denying Motions to Dismiss issued.
PDF:
Date: 04/27/2001
Proceedings: Request to File Additional Information in Response to New Rivers Filing of the December 12, 2000, Notice of Permit filed.
PDF:
Date: 04/23/2001
Proceedings: Notice of Filing, DEP Permit; Notice of Permit filed by J. Wershow.
PDF:
Date: 04/17/2001
Proceedings: Notice of Cancellation and Rescheduling of Hearing (Motion hearing set for April 20, 2001 at 2:00 p.m.) filed.
PDF:
Date: 04/11/2001
Proceedings: Paul Still`s Response to Department of Environmental Protection`s Motion to Dismiss the Petition for Administrative Hearing Filed by Paul Still filed.
PDF:
Date: 04/11/2001
Proceedings: Request for Continuance filed by Petitioner.
PDF:
Date: 04/09/2001
Proceedings: Department of Environmental Protection`s Motion to Dismiss Verified Petition for Administrative Hearing (filed via facsimile).
PDF:
Date: 04/09/2001
Proceedings: Request for Continuance (filed by Petitioner via facsimile).
PDF:
Date: 04/06/2001
Proceedings: Notice of Hearing filed by New River Waste Association.
PDF:
Date: 03/29/2001
Proceedings: New River Solid Waste Association`s Compliance with Initial Order filed.
PDF:
Date: 03/26/2001
Proceedings: Paul Still`s Response to New River Waste Association`s Motion to Dismiss the Petition for Administrative Hearing filed by Paul Still.
PDF:
Date: 03/26/2001
Proceedings: Paul Still`s Response to New River Solid Waste Association`s Motion for Attorney Fees and Costs filed.
PDF:
Date: 03/26/2001
Proceedings: Paul Still`s Response to Initial Order Item 3 filed.
PDF:
Date: 03/19/2001
Proceedings: New River Solid Waste Association`s Motion to Dismiss the Petition for Administrative Hearing filed by Paul Still.
PDF:
Date: 03/19/2001
Proceedings: Motion for Attorney Fees and Costs filed by J. Wershow.
PDF:
Date: 03/15/2001
Proceedings: Initial Order issued.
PDF:
Date: 03/14/2001
Proceedings: Permit filed.
PDF:
Date: 03/14/2001
Proceedings: Notice of Proposed Agency Action filed.
PDF:
Date: 03/14/2001
Proceedings: Intent to Issue filed.
PDF:
Date: 03/14/2001
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 03/14/2001
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
03/14/2001
Date Assignment:
03/15/2001
Last Docket Entry:
09/10/2001
Location:
Gainesville, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (6):

Related Florida Rule(s) (3):