08-004435EF Department Of Environmental Protection vs. Br Baldwin, Inc. Status: Closed DOAH Final Order on Tuesday, February 3, 2009.

Summary: Respondent admitted non-compliance with DEP rules requiring liability insurance coverage for petroleum storage tank facilities and for release detection monitoring. A penalty of $3,500 is imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 08-4435EF

)

BR BALDWIN, INC., )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on January 5, 2009,

by video teleconference, at sites in Tallahassee and Tampa,

Florida, before Bram D. E. Canter, an Administrative Law Judge

of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner Department of Environmental Protection:

Peter James Caldwell, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent BR Baldwin, Inc.:

Bobby Baldwin, pro se

BR Baldwin, Inc.

310 Bay Arbor Boulevard

Oldsmar, Florida 34677

PRELIMINARY STATEMENT

On or about August 21, 2008, Petitioner Department of

Environmental Protection (Department) issued a three-count

Notice of Violation, Orders for Corrective Action and

Administrative Penalty Assessment (NOV) against Respondent

BR Baldwin, Inc. (Baldwin). Baldwin timely requested an

administrative hearing and the Department referred the matter to

DOAH on September 10, 2008, to conduct the hearing.

At the hearing, the Department presented the testimony of

Alison Meetze. The Department’s Exhibits 1 through 9 were

admitted into evidence. Baldwin presented the testimony of its

President, Bobby Baldwin. Baldwin’s Exhibits A and B were

admitted into evidence. At the close of the hearing, the record

was kept open to receive additional exhibits that had been

referred to during the hearing. The Department’s post-hearing

Exhibit 9 was admitted into evidence. Baldwin’s post-hearing

Exhibits C through F were admitted into evidence.

A court reporter recorded the hearing, but a transcript was

not prepared nor filed with DOAH. The parties submitted

post-hearing writings which were considered in the preparation

of this Final Order.

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

Respondent Baldwin is liable for the violations of state

statutes and rules that are alleged in the NOV and, if so,

whether Respondent should be ordered to pay the civil penalties

proposed by the Department.

FINDINGS OF FACT

1. The Department is the state agency charged with the

power and duty to administer and enforce the provisions of

Chapters 376 and 405, Florida Statutes, and the rules

promulgated in Florida Administrative Code Title 62.

2. Respondent BR Baldwin, Inc., is a Florida corporation.

Beginning in July 31, 2006, Baldwin owned and operated an

automotive service station at 2000 Drew Street in Clearwater,

Florida (“the property”).

3. Located at the property are three underground fuel

storage tanks, along with their associated piping and

dispensers. There is also an underground storage tank for waste

oil.

4. Baldwin ceased using the underground storage tanks in

May 2007 and had them taken out of service in July 2007.

5. Count I of the NOV charges Baldwin with a violation of

Florida Administrative Code Rule 62-761.400(3)(a) which requires

owners and operators of petroleum storage tank facilities to

carry liability insurance or to otherwise demonstrate to the

Department that they are financially able to pay for corrective

actions and third party liability.

6. Baldwin admits that from July 31, 2006, until

June 25, 2007, it did not have liability insurance coverage for

the facility and did not otherwise demonstrate to the Department

that it was able to pay for potential liability.

7. Bobby Baldwin, the president of Baldwin, contends that

he tried to obtain insurance coverage but was unable to do so

until June 2007. The more persuasive evidence shows that he did

not at first make reasonable efforts to obtain insurance. His

efforts to obtain insurance only became reasonable after the

corporation was cited for failing to obtain insurance. Baldwin

alleged, but did not prove, that the violation was caused by

circumstances beyond his reasonable control and could not have

been prevented by his due diligence.

8. Bobby Baldwin contends that his receipt of a storage

tank registration placard from the Department misled him to

believe that he did not have to get insurance. The issuance of

a placard is not tied to the requirement for insurance coverage.

Bobby Baldwin admitted that he was unfamiliar with the

regulations that are applicable to petroleum storage facilities

when he purchased the facility. His failure to inform himself

about the applicable regulations was unreasonable and does not

provide a basis for mitigating the penalties assessed for

violating the regulations.

9. In the NOV, the Department seeks a penalty of $5,000

for the violation addressed in Count I.

10. Count II of the NOV charges Baldwin with violating

Florida Administrative Code Rule 62-761.610(3)(c), which

requires that manual tank gauging be performed for tanks of 550

gallons or less nominal capacity. The tank gauging is required

so that a leak can be discovered. Baldwin admits that it did

not perform manual gauging for its waste oil tank during the

approximate year that it operated the service station.

11. Bobby Baldwin testified that he would have performed

the manual gauging, but he was unaware that it was required. He

also testified that he never used the waste oil tank.

12. In the NOV, the Department seeks a penalty of $4,000

for the violation addressed in Count II, which represents two

days of violation. At the hearing, the Department modified the

penalty demand to seek only a single day violation, or $2,000.

13. Count III of the NOV is the Department’s claim for

investigative costs of $1,000. The Department apparently

determined not to seek costs and presented no evidence in

support of its costs claim at the final hearing.

14. At the hearing, the Department stated its willingness

to have the (modified) penalties of $7,000 reduced by 50

percent, to $3,500, and to allow Baldwin to pay the penalties in

twelve equal monthly installments.

15. Bobby Baldwin testified that he is financially unable

to pay even the revised penalties of $3,500. There are exhibits

in the record that relate to Bobby Baldwin’s personal finances.

However, Bobby Baldwin is not named in the NOV. BR Baldwin,

Inc., alone, is responsible for any penalties.

16. The Department contends that a respondent’s inability

to pay or difficulty in paying a penalty is not a mitigating

factor that can be applied to reduce penalties. The statute

does not identify inability to pay as a mitigating factor, but

neither does it exclude its consideration. See § 403.121(10),

Fla. Stat. The issue is moot in this case, however, because the

Department has already stipulated to the reduction of the

penalties by 50 percent.

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the parties and the subject

matter in this case under Sections 120.569, 120.57(1), and

403.121(2), Florida Statutes (2008). 1

18. Section 403.161(1)(b), Florida Statutes, makes it a

violation to fail to comply with any Department rule.

19. If the Department has reason to believe a violation of

the laws that it administers has occurred, it may institute an

administrative proceeding to establish liability, to recover

damages, and to order the prevention, abatement, or control of

the conditions creating the violation. See § 403.121(2)(a)-(b),

Fla. Stat.

20. However, the Department may proceed administratively

only in cases where it seeks administrative penalties that do

not exceed $10,000, as calculated in accordance with Section

403.121, Florida Statutes. § 403.121(2)(b), Fla. Stat.

21. The Department has the burden to prove by a

preponderance of the evidence that Baldwin violated the law as

alleged in the NOV. See § 403.121(2)(d), Fla. Stat.

22. In an administrative enforcement case, the

Administrative Law Judge is to issue a final order on all

matters, including the imposition of administrative penalties.

See § 403.121(2)(d), Fla. Stat.

23. Section 403.121(3), Florida Statutes, provides a range

of penalties that “must be calculated” for certain types of

violations. Section 403.121(4), Florida Statutes, provides a

range of penalties that the Department “must assess” for other

identified types of violations. Section 403.121(5), Florida

Statutes, provides that the Department “may assess” a penalty of

$500 for failure to comply with any Department statute or rule

not specifically identified in Section 403.121, Florida

Statutes.

24. A penalty “may be assessed” for each additional day in

which a violation occurs. See § 403.121(6), Fla. Stat.

25. For the violation addressed in Count I of the NOV,

Section 403.121(4), Florida Statutes, requires a penalty of

$5,000.

26. For the violation addressed in Count II of the NOV,

Section 403.121(3)(g), Florida Statutes, requires a penalty of

$2,000.

27. Evidence may be received in mitigation and the

Administrative Law Judge may reduce a penalty up to 50 percent

for mitigating factors. See § 403.121(10), Fla. Stat. The

Administrative Law Judge may further reduce the penalties upon

an affirmative finding that the violation was caused by

circumstances beyond the reasonable control of a respondent and

could not have been prevented by the respondent’s due diligence.

Id.

28. The Department’s revised penalty demand of $3,500, to

be paid in 12 monthly installments, is fair and reasonable under

the circumstances.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that

1. Respondent shall pay $3,500 to the Department for the

administrative penalties assessed above.

2. The penalties shall be paid in 12 monthly installments,

consisting of eleven payments of $291.67 and a final payment of

$291.63. The first installment shall be paid within 30 days of

the effective date of this Order. Each subsequent monthly

payment shall be due no later than the 5th day of the ensuing

month.

3. Payments shall be made by cashier’s check or money

order payable to the “State of Florida Department of

Environmental Protection” and shall include thereon the notation

“OGC Case No. 08-0305, Ecosystem Management and Restoration

Trust Fund.” The payment shall be sent to the Department of

Environmental Protection, Southwest District Office,

13051 North Telecom Parkway, Temple Terrace, Florida 33637.

DONE AND ORDERED this 3rd day of February, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 2009.

ENDNOTE

1 All references hereafter to the Florida Statutes are to the

2008 codification.

COPIES FURNISHED :

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Council.

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Bobby Baldwin

BR Baldwin, Inc.

310 Bay Arbor Boulevard

Oldsmar, Florida 34677

Peter James Caldwell, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.