10-010521EF Department Of Environmental Protection vs. Dickens Land Clearing And Rock World, Inc., And Leslie Dickens, Individually Status: Closed DOAH Final Order on Wednesday, June 1, 2011.

Summary: Respondents are determined to be liable for failure to notify the Department of their intent to demolish a building and for failure to conduct an asbestos investigation and are assessed $2,500 in administrative penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10521EF

)

DICKENS LAND CLEARING AND ROCK )

WORLD, INC., AND LESLIE )

DICKENS, INDIVIDUALLY , )

)

Respondents . )

)

FINAL ORDER

The final hearing in this case was held on May 17, 2011, by

video teleconference at sites in Tallahassee and Panama City,

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

of the Div ision of Administrative Hearings ("DOAH").

APPEARANCES

For Petitioner: Howard Fox, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondents : Leslie Dickens, pro se

9000 Panama City Beach Parkway

Panama City, Florida 32407

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondents, Leslie Dickens and Dickens Land Clearing & Rock

World, Inc., vio lated Department of Environmental Protection

("Department") rules that require a notice to be filed with the

Department and an asbestos investigation conducted before a

building is demolished; and if so, whether Respondents should

pay the administrative pe nalties that are demanded by the

Department.

PRELIMINARY STATEMENT

On October 28, 2010, the Department issued a Notice of

Violation, Orders for Corrective Action, and Administrative

Penalty Assessment (ÐNOVÑ), which included three counts against

Responde nts. Respondents timely filed a request for an

administrative hearing to contest the NOV. The Department

referred the matter to DOAH to conduct an evidentiary hearing

and issue a final order.

The Department served a request for admissions on

Respondents , which Respondents did not answer even though the

Department advised Respondents of the consequences of failing to

respond and the Department gave Respondents additional time to

respond. Based on Respondents' failure to respond to the

Department's reques t for admissions, the Department filed a

Motion for Summary Final Order as to Respondent's liability as

charged in the NOV.

The Motion for Summary Final Order was treated as a motion

in limine, because DOAH does not have express authority to issue

partial summary orders. The motion in limine was granted, which

had the effect of excluding any evidence or argument by

Respondents to dispute their liability for the charges in the

NOV. The case then proceeded to determine whether the penalties

should be mitig ated and whether the corrective actions should be

imposed.

At the final hearing, the Department presented no witness

testimony or exhibits. Respondents presented the testimony of

Leslie Dickens. Respondents' Exhibit 1 was admitted into

evidence.

A cour t reporter recorded the hearing, but no party ordered

a transcript. The Department filed a P roposed F inal O rder.

Respondents did not file a post - hearing submittal.

FINDINGS OF FACT

1. The Department is the state agency having the power and

duty to pro tect FloridaÓs air and water resources and to

administer and enforce the provisions of c hapters 373 and 403,

Florida Statutes, and the rules promulgated pursuant thereto in

Florida Administrative Code Title 62.

2. Respondent Leslie Dickens is an individu al and

President of Dickens Land Clearing & Rock World, Inc., which is

an inactive, dissolved Florida corporation whose office was 9000

Panama City Beach Parkway, Panama City, Florida.

3. On or about June 4, 2010, Respondents demolished a

commercial b uilding located at 2900 West 10th Street , Panama

City.

4. Respondents did not file a Notice of Demolition or

Asbestos Renovation form with the Department before the building

was demolished.

5. At the time of the demolition, the building had been

va cant for many years. The building had already been stripped

of floor tiles, sheet rock walls, and insulation.

6. Mr. Dickens testified that there was no asbestos in the

building at the time of the demolition. However, Mr. Dickens

did not conduct a thor ough investigation to determine whether

any asbestos was present. Instead, Mr. Dickens relied on an

analysis that had been performed in 1996 by EnviroChem, Inc.,

that shows two samples from the building were analyzed for

asbestos and no asbestos was detec ted. This analysis was

admitted into evidence over the Department's relevance objection

as Respondents' Exhibit 1. The document is relevant to the

issue of whether the penalties assessed by the Department should

be mitigated.

7. Exhibit 1 does not demo nstrate that a thorough

investigation was conducted to determine whether any asbestos

existed in the building at the time of the demolition.

8. The Department does not know whether the building ever

contained any asbestos.

CONCLUSIONS OF LAW

9. The Department may institute an administrative

proceeding to establish liability, to recover damages, and to

order corrective actions pursuant to section 403.121, Florida

Statutes (2010), when the Department seeks administrative

penalties that do not exceed $ 10,000. See § 403.121(2), Fla.

Stat.

10. The Department has the burden to prove by a

preponderance of the evidence that Respondents violated the law

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

11. When the Department seeks administrative p enalties,

the Administrative Law Judge is to issue a final order on all

matters. See § 403.121 (2)(d).

12. Count I of the NOV charges Respondents with violating

Florida Administrative Code Rule 62 - 257.301(2)(b)(1) and 40 CFR

61.145(b) (Federal Code of F ederal Regulations), which is

adopted and incorporated by reference in rule 62 - 204.800. Th ese

rule s require each owner or operator of a demolition activity to

file a Notice of Demolition or Asbestos Renovation form with the

Department at least 10 working days before demolition begins.

13. Respondents admit that they did not file this notice

with the Department. Therefore, Respondents are liable under

Count I.

14. Section 403.121(4)(e) provides that for a failure to

submit any required notification to the Department, the

Department shall assess a penalty of $1,000. Therefore,

Respondents are liable for $1,000 for the violation charged in

Count I.

15. Count II of the NOV charges Respondents with violating

40 CFR 61.145(a), which is adopted and incorpo rated by reference

in rule 62 - 204.800. This rule requires that, before a facility

is demolished, the owner or operator of a demolition activity

shall thoroughly inspect the facility for the presence of

asbestos.

16. Respondents admit that they did not c omply with this

requirement. Therefore, Respondents are liable under Count II.

17. Section 403.121(4)(d) provides that for a failure to

conduct any required testing, the Department shall assess a

penalty of $2,000. Therefore, Respondents are liable for $2,000

for the violation charged in Count II.

18. Section 403.121(8) states that the "direct economic

benefit gained by the violator" shall be added to the scheduled

administrative penalty. The Department seeks to have the

penalties increased by $1,500 , which is the Department's

estimate of the cost of the asbestos investigation which

Respondents avoided.

19. However, no evidence was presented by the Department

regarding the cost of an asbestos investigation and there was no

admission by Respondent s regarding this cost. There is no basis

upon which to determine Respondents' economic benefit.

20. The total administrative penalties assessed above is

$3,000. However, evidence may be received in mitigation and the

Administrative Law Judge may re duce the penalties up to 50

percent for mitigating factors. See § 403.121(10).

21. It is determined that the penalties should be reduced

by $500 because Respondents had reason to believe that the

building did not contain asbestos based on the environmen tal

analysis and the fact that the building had been stripped before

the demolition. The adjusted total penalty assessment is

$2,500.

22. Count III of the amended NOV charges Respondents with

liability for the Department's investigative costs in an amount

not less than $500. However, at the final hearing, the

Department withdrew its claim for investigative costs.

23. Section 403.1651(2)(a) provides that the Ecosystem

Management and Restoration Trust Fund shall be used for the

deposit of all money s recovered by the State under chapter 403.

24. The corrective actions sought by the Department in the

NOV simply require that Respondents pay the assessed penalties.

Payment of the administrative penalties is ordered below.

DISPOSITION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

Within 30 days of this Final Order, Respondents shall pay

$2,500 to the Department for the administrative penalties

assessed herein. Payment shall be made by cashierÓs check or

money o rder payable to the ÐState of Florida Department of

Environmental ProtectionÑ and shall include thereon the OCG Case

No. 10 - 2371 and the notation ÐEcosystem Management and

Restoration Trust Fund.Ñ The payment shall be sent to the

Department of Environment al Protection, 160 Government Center,

Suite 308, Pensacola, Florida 32502 - 5794.

DONE AND ORDERED this 1st day of June , 20 11 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Divisi on of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of June , 2011 .

COPIES FURNISHED :

Howard Evan Fox, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

Leslie Dickens

Dickens Land Clearing and Rock World, Inc.

9000 Panama City Beach Parkw ay

Panama City, Florida 32407

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmenta l Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDIC I AL 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 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, r with the Distri ct 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.