99-001915 Environmental Waste Recyclers, Inc. vs. Department Of Environmental Protection
 Status: Closed
Recommended Order on Wednesday, November 10, 1999.


View Dockets  
Summary: Failure to pay application fee resulted in an incomplete application. Petition should be denied.

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, Respondent’s representative

132denied Petitioner’s 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

302Respondent’s 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 Petitioner’s employee, date-stamped and perused by

345Respondent’s employee, and returned to Petitioner’s employee upon

353observing the absence of the application fee.

3603. On August 29, 1997, Petitioner again submitted the

369application to Respondent’s 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, Respondent’s 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. Petitioner’s 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 Petitioner’s

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/23/1999
Proceedings: Final Order filed.
PDF:
Date: 12/22/1999
Proceedings: Agency Final Order
PDF:
Date: 11/10/1999
Proceedings: Recommended Order
PDF:
Date: 11/10/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 9/24/99.
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
 

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