14-004142EF Department Of Environmental Protection vs. Classic Homebuilders Incorporated Status: Closed DOAH Final Order on Thursday, April 30, 2015.

Summary: The pleadings, admissions, and affidavits showed there was no genuine issue of material fact and that Respondent is liable for failing to properly maintain and operate its stormwater facility.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner,

vs. Case No. 14 - 4142EF

CLASSIC HOMEBUILDERS

INCORPORATED,

Respondent.

_______________________________/

SUMMARY FINAL ORDER

P etitioner filed a motion for summary final order based on

its contention that there is no genuine issue as to any material

fact regarding the Notice of Violation, Orders for Corrective

Action and Administrative Penalty Assessment (ÐNOVÑ) issued

against Res pondent. No response to the motion was filed by

Respondent. An Order to Show Cause was then issued. In its

response to the Order to Show Cause, Respondent states that it is

financially incapable of defending against PetitionerÓs

enforcement action and w ill be submitting a re - designed

stormwater system for review by Petitioner .

APPEARANCES

For Petitioner: Margaret E. Seward, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: Gregory D. Smith, Esquire

Gregory D. Smith, P.A.

Post Office Box 12853

Pensacola, Florida 32502

STATEMENT OF THE ISSUES

The issues to be decided in this case are whether Respondent

is liable for the violations charged in the NOV, whether

R espondent should pay the penalties assessed in the NOV, and

whether Respondent should be re quired to take the corrective

actions demanded in the NOV.

FINDINGS OF FACT

1. On August 7, 2014, Petitioner issued the NOV, charging

Respondent with failure to maintain its stormwater facility in

compliance with its permit and state law. Respondent filed an

answer and request for a hearing. The matter was referred to the

Division of Administrative Hearings.

2. Petitioner Department of Environmental Protection

(ÐDepartmentÑ) is the state agency having powers and duties

related to the regulation of stormwater facilities.

3. Respondent Classic Homebuilders Incorporated is a

Florida corporation and holds a General Stormwater Permit issued

by the Department for the construction and operation of a

stormwater facility at 5100 Terra Lake Circle, Pensacola ,

Florida.

4. On April 9, 2013, Department staff inspected

RespondentÓs stormwater facility and determined that the ponds do

not percolate within 72 hours as required by the permit.

5. On July 23, 2014, Department staff inspected the

facility a gain and determined that the percolation problem had

not been corrected. Debris and silt were observed in the

stormwater facility.

6. Respondent has not submitted an Ðas - builtÑ

certification.

7. The Department incurred $500 in expenses assoc iated with

its investigation of this matter. That is a reasonable amount.

CONCLUSIONS OF LAW

8. The Department may initiate an administrative proceeding

to establish liability for violations of the laws the Department

administers. § 403.121(2), Fl a. Stat. (2014).

9. Because the Department seeks to impose administrative

penalties, a final order is issued by the Administrative Law

Judge. § 403.121(2)(d), Fla. Stat. (2014).

10. The Department has the burden to prove by a

preponderance of the evidence that Respondent is liable for the

violations charged in the NOV.

11. A party may move for a summary final order when there

is no genuine issue as to any material fact.

§ 120.57(1)(h), Fla. Stat. (2014). The Administrative Law Judge

has determined from the pleadings and affidavits that there is no

genuine issue as to any material fact.

12. Count I of the NOV charges Respondent with failure to

properly maintain and operate a permitted stormwater facility as

required by Florida Admini strative Code Rules 62 - 4.160(6) and

62 - 4.540(12). Respondent is liable under Count I.

13. Section 403.121(4)(b), Florida Statutes, provides that

the Department shall assess an administrative penalty of $4,000

for failure to install, maintain, or u se a required pollution

control system.

14. Count II of the NOV charges Respondent with failure to

timely file an as - built certification as required by r ule

62 - 25.801(2)(e). Respondent is liable under Count II.

15. Section 403.121(4)(f) provi des that the Department

shall assess an administrative penalty of $500 for failure to

submit required reports.

16. Count III of the NOV seeks reimbursement of the

DepartmentÓs expenses of $500 for investigating this matter.

17. Section 403.141(1) provide s that the Department may

recover its reasonable costs and expenses in controlling sources

of pollution.

18. The corrective actions demanded in the NOV are

reasonable.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. Respondent shall pay $4,500 in penalties and reimburse

the Department $500 for investigative expenses , in the manner

described in t he NOV. The deadline for payment shall be

calculated from the date of this Summary Final Order.

2. Respon dent shall comply with the Orders for Corrective

Actions set forth in the NOV. The deadlines for actions shall be

calculated from the date of this Summary Final Order.

DONE AND ORDERED this 30th day of April , 2015 , in

Tallahassee, Leon County, Florida .

S

BRAM D. E. CANTER

Administrative Law Judge

Division 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 30th day of April , 2015 .

COPIES FURNISHED:

Margaret E. Seward, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 3239 9 - 3000

(eServed)

Rick Faciane

Classic Homebuilders Incorporated

6833 Cedar Ridge Drive

Pensacola, Florida 32526

Gregory D. Smith, Esquire

Gregory D. Smith, P.A.

Post Office Box 12853

Pensacola, Florida 32502

(eServed)

Jonathan P. Steverson, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Craig Varn, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Flor ida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

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 administrative appe al with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the a ppellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.