99-001915
Environmental Waste Recyclers, Inc. vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Wednesday, November 10, 1999.
Recommended Order on Wednesday, November 10, 1999.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ENVIRONMENTAL WASTE RECYCLERS, )
12INC., )
14)
15Petitioner, )
17)
18vs. ) Case No. 99-1915
23)
24DEPARTMENT OF ENVIRONMENTAL )
28PROTECTION, )
30)
31Respondent. )
33_________________________________)
34RECOMMENDED ORDER
36Pursuant to notice, Administrative Law Judge Don W. Davis,
45duly-designated by the Division of Administrative Hearings, held
53a formal hearing in the above-styled case on September 24, 1999,
64in Tallahassee, Florida.
67APPEARANCES
68For Petitioner: O. C. All en, Qualified Representative
76Environmental Waste Recyclers, Inc.
80Post Office Box 10572
84Tallahassee, Florida 32302
87For Respondent: Martha L. Nebelsiek, Esquire
93Department of Environmental Protection
97Douglas Building, Mail Station 35
1023900 Commonwealth Boulevard
105Tallahassee, Florida 32399-3000
108STATEMENT OF THE ISSUE
112Whether the permit sought by Petiti oner should be issued.
122PRELIMINARY STATEMENT
124By letter dated January 7, 1998, Respondents representative
132denied Petitioners application for a permit to construct and
141operate a materials recovery facility in Leon County, Florida.
150Petitioner filed a Petition for Administrative Proceedings
157on April 22, 1999. The matter was transferred to the Division of
169Administrative Hearings for the conduct of formal proceedings
177pursuant to Section 120.57, Florida Statutes.
183At the final hearing, Petitioner presen ted the testimony of
193three witnesses and Exhibit Nos. 1-3. Respondent presented
201testimony of four witnesses. Both parties sponsored a composite
210exhibit consisting of 29 subparts.
215The Transcript of the final hearing was filed with the
225Division of Administrative Hearings on October 8, 1999. The
234parties requested and were granted more than 10 days from the
245filing of the Transcript within which to submit proposed
254recommended orders. Those post hearing submissions have been
262reviewed in connection with the preparation of this Recommended
271Order.
272FINDINGS OF FACT
2751. Petitioner initially filed a permit application with
283Respondent on March 17, 1997. The required application fee did
293not accompany the application. The submittal, in accordance with
302Respondents office procedure, was date-stamped at that time but
311in the absence of the application fee and proper signatories, was
322not viewed as an application ready for review.
3302. The initial permit application had been hand-delivered
338by Petitioners employee, date-stamped and perused by
345Respondents employee, and returned to Petitioners employee upon
353observing the absence of the application fee.
3603. On August 29, 1997, Petitioner again submitted the
369application to Respondents offices. This time, the application
377was appropriately signed and accompanied by a check for the
387appropriate application fee.
3904. Following the August 29, 1997, submittal, Petitioner
398stopped payment on the check for application fees. However, the
408review process had begun on the application. By letter dated
418September 26, 1997, Respondents representative requested
424additional information of Petitioner. There was no response to
433the request.
4355. The permit application fee remained unpaid at the time
445of final hearing.
448CONCLUSIONS OF LAW
4516. The Division of Administrative Hearings has jurisdiction
459of the parties and of the subject matter of this proceeding.
470Section 120.57(1), Florida Statutes.
4747. Respondent is the regulatory agency authorized by the
483State to act as the permitting authority for the permit at issue
495in this proceeding, pursuant to Chapter 403, Florida Statutes,
504and Chapter 62-4, Florida Administrative Code.
5108. Section 403.087(6)(a), Florida Statutes, in pertinent
517part, reads as follows:
521The department shall require a processing fee
528in an amount sufficient, to the greatest
535extent possible, to cover the costs of
542reviewing and acting upon any application for
549a permit or request for site-specific
555alternative criteria or for an exemption from
562water quality criteria and to cover the costs
570of surveillance and other field services and
577related support activities associated with
582any permit issued pursuant to this chapter.
589However, when an application is received
595without the required fee, the department
601shall acknowledge receipt of the application
607and shall immediately return the unprocessed
613application to the applicant and shall take
620no further action until the application is
627received with the appropriate fee.
6329. Petitioner, as the applicant for the permit at issue in
643these proceedings, carries the ultimate burden of persuasion of
652its entitlement to that permit. Florida Department of
660Transportation v. J.W.C. , 396 So. 2d 778, 787-88 (Fla. 1st DCA
6711981).
67210. Petitioners argument that "deemer" provisions of
679Section 120.60(2) Florida Statutes, should apply to an incomplete
688application upon which Respondent could not commence review in
697the absence of an application fee, is not persuasive.
70611. Based on the evidence presented at the hearing,
715Petitioner has failed to provide a completed application to
724Respondent. Therefore, Petitioner is not entitled to the
732requested permit.
734RECOMMENDATION
735Based on the foregoing Findings of Fact and Conclusions of
745Law, it is RECOMMENDED that the Florida Department of
754Environmental Protection enter a final order DENYING Petitioners
762application for the requested permit.
767DONE AND ENTERED this 10th day of November, 1999, in
777Tallahassee, Leon County, Florida.
781___________________________________
782DON W. DAVIS
785Administrative Law Ju dge
789Division of Administrative Hearings
793The DeSoto Building
7961230 Apalachee Parkway
799Tallahassee, Florida 32399-3060
802(850) 488-9675 SUNCOM 278-9675
806Fax Filing (850) 921-6847
810www.doah.state.fl.us
811Filed with the Clerk of the
817Division of Administrative Hearings
821this 10th day of November, 1999.
827COPIES FURNISHED:
829O. C. Allen, Jr., Qualified Representative
835Environmental Waste Recyclers, Inc.
839Post Office Box 10572
843Tallahassee, Florida 32302
846Martha L. Nebelsiek, Esquire
850Department of Environmental
853Protection
854Douglas Building, Mail Station 35
8593900 Commonwealth Boulevard
862Tallahassee, Florida 32399-3000
865Kathy Carter, Agency Clerk
869Department of Environmental Protection
873Douglas Building, Mail Station 35
8783900 Commonwealth Boulevard
881Tallahassee, Florida 32399-3000
884Teri Donaldson, General Counsel
888Department of Environmental Protection
892Douglas Building, Mail Station 35
8973900 Commonwealth Boulevard
900Tallahassee, Florida 32399-3000
903David B. Struhs, Secretary
907Department of Environmental Protection
911Doulgas Building, Mail Station 35
9163900 Commonwealth Boulevard
919Tallahassee, Florida 32399-3000
922NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
928All parties have the right to submit written exceptions within
93815 days from the date of this Recommended Order. Any exceptions
949to this Recommended Order should be filed with the agency that
960will issue the Final Order in this case.
- Date
- Proceedings
- Date: 11/08/1999
- Proceedings: Respondent`s Proposed Recommended Order filed.
- Date: 11/08/1999
- Proceedings: Proposed Recommended Order Environmental Waste Recyclers, Inc. filed.
- Date: 10/08/1999
- Proceedings: Transcript filed.
- Date: 09/24/1999
- Proceedings: CASE STATUS: Hearing Held.
- Date: 09/24/1999
- Proceedings: Petitioners Notice of Filing Written Request (filed via facsimile).
- Date: 09/23/1999
- Proceedings: Petitioners Amendment to Prehearing Stipulation (filed via facsimile).
- Date: 09/21/1999
- Proceedings: (Respondent) Amendment to Prehearing Stipulation (filed via facsimile).
- Date: 09/20/1999
- Proceedings: Respondent`s Prehearing Stipulation (filed via facsimile).
- Date: 08/27/1999
- Proceedings: (M. Nebelsiek) Notice of Substitution of Counsel for Department of Environmental Protection filed.
- Date: 08/23/1999
- Proceedings: Order Granting Continuance and Re-scheduling Hearing sent out. (hearing set for 9:30am; Tallahassee; 9/24/99)
- Date: 08/11/1999
- Proceedings: Respondent`s Motion for Continuance filed.
- Date: 06/09/1999
- Proceedings: Notice of Hearing sent out. (hearing set for 9:30am; Tallahassee; 9/14/99)
- Date: 06/09/1999
- Proceedings: Order of Pre-hearing Instructions sent out.
- Date: 05/12/1999
- Proceedings: Respondent`s Answer and Affirmative Defenses to Petition filed.
- Date: 05/10/1999
- Proceedings: Joint Response to Initial Order (filed via facsimile).
- Date: 04/29/1999
- Proceedings: Initial Order issued.
- Date: 04/27/1999
- Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record; Petition for Administrative Proceedings; Notice of Denial of Use of Permit (letter); Request for Hearing (letter) filed.
Case Information
- Judge:
- DON W. DAVIS
- Date Filed:
- 04/27/1999
- Date Assignment:
- 04/29/1999
- Last Docket Entry:
- 12/23/1999
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN PART OR MODIFIED