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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL STILL, )

)

Petitioner, )

)

vs. )

) Case No. 01-1033

NEW RIVER SOLID WASTE )

ASSOCIATION and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

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

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

Johnston, Administrative Law Judge (ALJ), Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner : Paul Still, pro se

Route 4 Box 1297H

Starke, Florida 32091

For Department of Environmental Protection:

W. Douglas Beason, Esquire

Department of Environmenta l Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

For New River Solid Waste Association:

Jonathan F. Wershow, Esquire

Post Office Box 1260

Gainesville, Florida 32602

STATEMENT OF THE ISSUES

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

River Solid Waste Association (NRSWA) requested that its

permitted bioreactor landfill system be included as part of its

application for renewal of its operating permit for the New

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

Petitioner participated in this proceeding for an improper

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

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

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

codification of Florida Statutes. Rule citations are to the

current Florida Administrative Code.)

PRELIMINARY STATEMENT

This case involves NRSWA's application to renew its Permit

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

particular as it relates to NRSWA's earlier application to

modify the permit to allow construction and operation of a

bioreactor landfill system on retired cells 1 and 2 of the

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

between these proceedings is part of both the procedural

background and pertinent facts of this case.

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

NRSWA a permit modification to construct a bioreactor system at

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

Petitioner, Paul Still, timely filed a Petition for

Administrative Hearing to challenge DEP's proposed agency

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

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

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

for Administrative Hearing for lack of standing.

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

bioreactor modification application was pending, NRSWA applied

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

operation of its landfill.

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

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

standing.

On September 26, 2000, the Petitioner filed an Amended

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

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

filed a Motion to Dismiss the Amended Petition for

Administrative Hearing for lack of standing.

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

Information (RAI) as to the renewal application.

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

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

of standing.

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

RAI, which included the statement:

Please note the permit modification

application for the bioreactor construction

and operation, DEP File Number

0013500 -004 -SC, is currently under review by

Department. It is understood that the

previously submitted bioreactor information

is to be incorporated in the renewed permit.

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

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

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

This permit provided in pertinent part:

This modification shall remain in effect as

long as the underlying permit, SC63-271982,

is in effect. The underlying permit will

remain in effect until final agency action

is taken on the renewal application of that

permit . . . .

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

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

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

draft permit incorporated specific conditions addressing the

construction and operation of the bioreactor system.

On February 28, 2001, the Petitioner filed a verified

Petition for Administrative Hearing concerning DEP's proposed

agency action with respect to NRSWA's application for the

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

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

No. 01-1033.

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

for Administrative Hearing and a Motion for Attorney Fees and

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

Verified Petition for Administrative Hearing.

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

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

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

motion was based only on res judicata . The res judicata

arguments were that the Petition for Administrative Hearing in

Case No. 01-1033 challenged the bioreactor modification which

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

opposition to all three motions, and a telephone hearing was

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

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

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

discrepancy between allegations in the Petition for

Administrative Hearing and Petitioner's argument on the motions

to dismiss, and Petitioner was instructed to amend his pleading

if he intended the Petition for Administrative Hearing in this

case to challenge renewal of the modified underlying landfill

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

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

Attorney Fees and Costs.

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

responses to the Initial Order and other input given during the

telephone hearing on April 25, 2001. Final hearing was

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

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

among other things, also was entered.

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

Hearing was filed clarifying Petitioner's challenge to renewal

of the modified underlying landfill permit under the standards

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

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

Petitioner to Post a Bond to secure payment of the prevailing

party attorney fees and costs award anticipated by NRSWA under

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

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

2001 (along with other prehearing case management matters.) At

the hearing, DEP indicated its opposition to the motion to

require bond.

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

Petitioner filed a response in opposition (along with a

"preamble related to the motion and its impact on case

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

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

issues for final hearing to those identified in the Order

Denying Motions to Dismiss as reasons why the doctrine of res

judicata did not bar the Petition for Administrative Hearing. A

combination hearing/prehearing conference was held by telephone

on May 30, 2001.

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

Motion in Limine were entered.

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

Stipulation, which identified three issues of fact and five

issues of law remaining for determination, including:

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

renewal of its existing operating permit, that the bioreactor

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

whether the prevailing party is entitled to attorney fees under

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

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

At final hearing, NRSWA called Frank Darabi, its

professional engineer, and had Respondent's Exhibits 1 through

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

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

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

have not been filed.) Petitioner called two DEP employees

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

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

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

Objections to Petitioner's expert testimony in his own behalf

were sustained; objections to the admission of alleged learned

treatises were sustained for lack of sufficient evidence that

the treatises were authoritative. Petitioner then called

Darabi, who was recalled by NRSWA in rebuttal.

After presentation of evidence, Petitioner announced that

he was withdrawing all issues except for the issue whether NRSWA

properly applied for renewal of the bioreactor modification

permit as part of the renewal application so as to allow

inclusion of the bioreactor modification in the renewal permit.

After Petitioner's announcement, NRSWA moved to reopen the

evidentiary record for additional rebuttal testimony on the sole

remaining issue. Petitioner's objection that the witness was

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

would not qualify as rebuttal.

No party ordered a transcript of final hearing, and the

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

file proposed recommended orders (PROs).

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

2001, NRSWA filed a Motion for Extension of Time until June 20,

2001, to file PROs; the motion indicated DEP's concurrence and

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

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

Time elaborating on its grounds and indicating Petitioner's

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

DEP then filed an Addendum to Amended Motion for Extension

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

extension, indicated that counsel for DEP would attempt to file

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

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

2001, Petitioner filed a response in opposition to an extension

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

2001.

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

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

PRO's have been considered.

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

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

not specifically renew its Motion for Attorney Fees and Costs

under Section 120.569(2)(e).

FINDINGS OF FACT

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

Counties and was formed to share the costs associated with solid

waste disposal. NRSWA owns and operates the New River Regional

Landfill in Union County. The landfill was initially permitted

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

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

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

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

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

collection center.

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

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

to allow construction and operation of a bioreactor landfill

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

notice of its intent to issue NRSWA a permit modification to

construct and operate the bioreactor system.

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

a Petition for Administrative Hearing to challenge DEP's

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

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

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

Petition for Administrative Hearing for lack of standing.

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

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

landfill. The renewal application requested that all landfill

permits be consolidated into the renewal permit as a single

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

bioreactor modification application remained pending, and the

renewal application did not specify the bioreactor modification

as part of the renewal application.

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

transmittal letter on September 7, 2000; arranged for delivery

of the application to DEP's Northeast District office in

Jacksonville, Florida; and thought it was delivered and left

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

that the renewal application was submitted to DEP before

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

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

701.900(1). The application was signed on the behalf of NRSWA

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

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

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

to comply with applicable statutes and DEP rules. The

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

as professional engineer. Darabi's signature certified that all

engineering features in the application were "designed/examined

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

applicable to such facilities."

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

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

The ALJ held that the allegations in the Petition for

Administrative Hearing failed to demonstrate that the Petitioner

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

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

The ALJ granted Petitioner leave to amend as to standing.

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

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

included new allegations in an attempt to address the question

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

Motion to Dismiss the Amended Petition for Administrative

Hearing. NRSWA asserted that the Amended Petition for

Administrative Hearing failed to sufficiently allege

Petitioner's standing.

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

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

not ask for any information concerning the pending bioreactor

modification application.

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

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

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

no new allegations sufficient for a presumption of standing to

initiate and sustain these proceedings."

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

DEP's RAI, which included the statement:

Please note the permit modification

application for the bioreactor construction

and operation, DEP File Number

0013500 -004 -SC, is currently under review by

Department. It is understood that the

previously submitted bioreactor information

is to be incorporated in the renewed permit.

This statement was included after Darabi asked DEP and was told

that it would be appropriate to include information about the

pending bioreactor modification application in the response to

RAI although not asked for in the RAI.

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

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

or certifications like those provided for in DEP FORM 62-

701.900(1). However, Darabi had been NRSWA's professional

engineer since its inception, had signed numerous application

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

authorization to submit the response to RAI.

13. DEP entered its Final Order dismissing Case No.

00-3448 on December 4, 2000. On December 12, 2000, DEP issued

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

modification. This permit provided in pertinent part:

This modification shall remain in effect as

long as the underlying permit, SC63-271982,

is in effect. The underlying permit will

remain in effect until final agency action

is taken on the renewal application of that

permit . . . .

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

14. Following review of the additional information

submitted by NRSWA on its renewal application, DEP deemed the

permit application complete as of November 3, 2000. Additional

information was submitted in January 2001, including a request

submitted on January 11 that the bioreactor modification part of

the renewal permit address specific conditions omitted from the

modification permit issued on December 12, 200 0.

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

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

DEP's draft permit incorporated specific conditions addressing

the construction and operation of the bioreactor system, as well

as all other permitted landfill activities.

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

NRSWA consistently has taken the position that the bioreactor

system modification was included in its renewal application.

Alleged Improper Purpose

17. The evidence did not prove that Petitioner

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

primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

licensing or securing the approval of NRSWA's permit renewal

applications. To the contrary, the evidence was that Petitioner

participated in this proceeding in an attempt to raise

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

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

granted. Petitioner failed in his attempts in large part

because several issues he wanted to litigate were outside the

scope of a permit renewal application and because he had no

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

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

The sole remaining issue after Petitioner's announcement might

be viewed as a procedural technicality bordering on being

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

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

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

sole remaining issue was frivolous.

CONCLUSIONS OF LAW

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

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

pertinent part:

When a licensee has made timely and

sufficient application for the renewal of a

license which does not automatically expire

by statute, the existing license shall not

expire until the application for renewal has

been finally acted upon by the agency . . .

.

19. With regard to its review of applications for the

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

application for the renewal of an operating permit must be

submitted at least 60 days prior to the expiration of the

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

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

underlying permit, the rule provides:

If the renewal application is submitted at a

later date, it will not be considered timely

and sufficient unless it is submitted and

made complete prior to the expiration of the

operation permit. When the application for

renewal is timely and sufficient, the

existing permit shall remain in effect until

the renewal application has been finally

acted upon by Department.

20. Petitioner does not challenge DEP's determination that

NRSWA permit application was timely and sufficient under the

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

existing permit remains in effect pending final agency action by

DEP on the renewal application.

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

that NRSWA failed to properly request that the bioreactor permit

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

existing operating permit. There are several reasons why this

contention has no merit.

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

was not required to include the construction and operation of

the bioreactor system because NRSWA did not have a solid waste

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

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

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

final agency action with respect to the permit modification for

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

for renewal of a permit that did not yet exist.

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

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

in its consideration and review of the application for the

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

procedural history circumstances surrounding the submittal and

review of the bioreactor and renewal permit applications, the

request in the response to RAI to include the bioreactor permit

in the renewal application was not inappropriate.

24. Petitioner maintains that the procedure utilized by

NRSWA and DEP to incorporate the bioreactor permit into the

renewal application technically was fatally flawed in that the

sworn verification in the renewal application did not

specifically refer to the bioreactor system and there has been

no subsequent sworn verification such as the one contained in

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

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

up through and including Darabi's sworn testimony at final

hearing, that NRSWA has wanted the bioreactor permit, which

bears an expiration date tied to expiration of the underlying

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

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

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

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

application for the renewal permit was timely and sufficient;

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

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

NRSWA has already received a permit modification which

authorizes the construction and operation of the bioreactor

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

pending final agency action on the renewal permit application;

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

the bioreactor permit and the renewal permit into a single solid

waste permit.

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

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

denying renewal of the bioreactor permit would not be the

appropriate remedy. Instead, such a technical defect easily can

be cured by requiring as an additional special condition that

NRSWA supply a sworn verification like the one contained in DEP

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

system.

Requests for Attorney Fees and Costs

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

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

hearing, NRSWA indicated that it would be seeking attorney fees

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

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

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

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

27. Jurisdiction will be reserved to determine the request

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

enter the final order under that statute . See Procacci

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

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

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

1993) .

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

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

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

pertinent part:

(a ) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administrative proceedings.

(b ) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c ) In proceedings pursuant to

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

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection and s.

120.569(2)(e). In making such

determination, the administrative law judge

shall consider whether the nonprevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailing

adverse party participated in the pending

proceeding for an improper purpose.

(d ) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney's fees.

(e ) For the purpose of this subsection:

1. "Improper purpose" means

participation in a proceeding

pursuant to s. 120.57(1) primarily

to harass or to cause unnecessary

delay or for frivolous purpose or

to needlessly increase the cost of

licensing or securing the approval

of an activity.

(Emphasis added.)

29. The "definition" of improper purpose in Section

120.569(2)(e) is not identical to the definition in Section

120.595(1)(e )1. Section 120.569(2)(e) provides that signatures

on pleadings, motions, or other papers certify that the

signatory has read the document and that "based upon reasonable

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

to harass or to cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of litigation."

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

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

is concluded that Section 120.595(1) only references the

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

but that participation in a proceeding is for an improper

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

harass or to cause unnecessary delay or for frivolous purpose or

to needlessly increase the cost of licensing or securing the

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

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

120.595(1)(a) provides that its provisions are "supplemental to,

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

or costs in administrative proceedings.")

31. There is no evidence or indication that the rebuttable

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

applies in this case. According to the evidence, Petitioner

participated in only one other such proceeding involving NRSWA

and its project in which Petitioner did not establish either the

factual or legal merits of his position.

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

determine improper purpose for the purpose of imposing sanctions

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

predecessor statutes. As stated in Friends of Nassau County,

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

In the same vein, we stated in Procacci

Commercial Realty, Inc. v. Department of

Health and Rehabilitative Services , 690

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

The use of an objective standard

creates a requirement to make

reasonable inquiry regarding

pertinent facts and applicable

law. In the absence of "direct

evidence of the party's and

counsel's state of mind, we must

examine the circumstantial

evidence at hand and ask,

objectively, whether an ordinary

person standing in the party's or

counsel's shoes would have

prosecuted the claim."

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

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

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

349, 352 (4th Cir.1998) ("Put differently a

legal position violates Rule 11 if it 'has

"absolutely no chance of success under the

existing precedent." ') Brubaker v. City of

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

Cir.1991)(quoting Cleveland Demolition Co.

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

Cir.1987))."[)]

* * *

Whether [predecessor to Section 120.595(1)]

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

(1995), authorizes sanctions for an initial

petition in an environmental case turns

. . . on the question whether the signer

could reasonably have concluded that a

justiciable controversy existed under

pertinent statutes and regulations. If,

after reasonable inquiry, a person who

reads, then signs, a pleading had

"reasonably clear legal justification" to

proceed, sanctions are inappropriate.

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

560 So.2d at 278.

Although there is no appellate decision explicitly extending the

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

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

objective standard should not be used to determine whether

Petitioner's participation in this proceeding was for an

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

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

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

866225 (Fla. Div. Admin. Hrgs.).

33. In another appellate decision, decided before the

objective standard was enunciated for cases under Section

120.569(2)(e) and its predecessor statutes, the court in Burke

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

DCA 1991), held:

The statute is intended to shift the cost of

participation in a Section 120.57(1)

proceeding to the nonprevailing party if the

nonprevailing party participated in the

proceeding for an improper purpose. A party

participates in the proceeding for an

improper purpose if the party's primary

intent in participating is any of four

reasons, viz : to harass, to cause

unnecessary delay, for any frivolous

purpose, [FN1] or to needlessly increase the

prevailing party's cost of securing a

license or securing agency approval of an

activity.

Whether a party intended to participate in a

Section 120.57(1) proceeding for an improper

purpose is an issue of fact. See Howard

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

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

discriminatory intent is a factual issue);

School Board of Leon County v. Hargis , 400

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

(questions of credibility, motivation, and

purpose are ordinarily questions of fact).

The absence of direct evidence of a party's

intent does not convert the issue to a

question of law. Indeed, direct evidence of

intent may seldom be available. In

determining a party's intent, the finder of

fact is entitled to rely upon permissible

inferences from all the facts and

circumstances of the case and the

proceedings before him.

FN1. A frivolous purpose is one which is of

little significance or importance in the

context of the goal of administrative

proceedings. Mercedes Lighting & Electrical

Supply, Inc. v. Department of General

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

1990).

34. Burke also is of interest because it involves facts

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

to Burke , the hearing officer found:

6. Petitioner . . . submitted no evid ence

to show facts necessary to sustain the

pleadings in the Petition. . . . Petitioner

offered no expert testimony in support of

the pleadings in the Petition. . . . The

testimony of fact witnesses called by

Petitioner was not material to Petitioner's

claims. . . .

7. Petitioner consistently demonstrated a

lack of knowledge of the applicable law, the

proper scope of the formal hearing, and the

distinction between argument and evidence.

Petitioner repeatedly attempted to establish

violations of laws not relevant to the

proceeding. . . . Petitioner attempted to

establish issues by arguing with witnesses

during direct and cross-examination, and by

repeatedly making unsworn ore tenus

representations of fact.

8. There was a complete absence of

justiciable issue of either law or fact in

this proceeding because petitioner failed to

show facts necessary to sustain the

pleadings. Petitioner presented no evidence

refuting Respondent, Burke's, showing that

the modifications required by DER were

adequate to assure water quality and the

public health, safety, or welfare, or the

property of others. Evidence presented by

Petitioner was not material to the issue of

whether the modifications required by DER

were adequate for the purposes of the law

applicable to this proceeding. Therefore,

Petitioner participated in this proceeding

for a frivolous purpose, primarily to cause

unnecessary delay, or to needlessly increase

the cost of licensing or approval of the

proposed activity.

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

discrepancies between the court's version of the findings and

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

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

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

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

Environmental Regulation (predecessor to DEP) accepted the

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

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

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

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

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

Despite acceptance of factual findings

below, the final order characterizes the

conduct of Harbor Estates' representative as

mere "incompetent representation." We

reject that characterization as not

consistent with the hearing officer's

findings and, therefore, do not here decide

whether incompetent representation alone

permits a finding of improper purpose.

* * *

We reject appellees' argument that a

qualified lay representative in a Section

120.57 proceeding should be held to a lesser

standard of conduct, as distinguished from

legal competence, than a licensed attorney .

Section 120.62(2), Florida Statutes,

permitting qualified lay representatives to

represent parties in administrative

proceedings, provides no basis for holding

such representatives to a lesser standard of

conduct. A contrary rule would permit a

party to insulate itself from the

consequences of Section 120.59(6), Florida

Statutes, by choosing lay representation.

Id. at 1037-1038.

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

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

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

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

Petitioner repeatedly attempted to establish violations of laws

not relevant to the proceeding, argued with witnesses, or

repeatedly made unsworn ore tenus representations of fact during

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

Petitioner accepted and reacted appropriately to adverse

rulings, particularly as to the issues for determination on

permit renewal and his lack of qualifications to give relevant

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

the evidence that he was dropping all issues except one.

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

announcement might be viewed as a procedural technicality

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

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

issue was justifiable and not frivolous. Under the totality of

circumstances, it was not proven that Petitioner's participation

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

to harass or to cause unnecessary delay or for frivolous purpose

or to needlessly increase the cost of licensing or securing the

approval of NRSWA's permit renewal applications.

37. NRSWA also seeks attorney fees and costs under Section

403.412(2)(f). This statute entitles the prevailing party or

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

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

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

provisions do not apply to administrative actions brought under

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

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

86-2463, 1987 WL 62066 (Fla. DER 1987). In this context, the

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

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

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

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

2000)(DOAH not a "court of competent jurisdiction") ; Florida

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

1996)( same).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

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

the verified Petition for Administrative Hearing ; (2) granting

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

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

operation of all existing landfill operations, including NRSWA's

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

collection center, and its permit for the bioreactor landfill

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

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

and Section 403.312(2)(f).

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

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

to the extent that it has been preserved.

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

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of August, 2001.

COPIES FURNISHED :

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Paul Still

Route 4 Box 1297H

Starke, Florida 32091

Jonathan F. Wershow, Esquire

Post Office Box 1260

Gainesville, Florida 32602

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.