15-002826 Citrus County, Board Of County Commissioners vs. Good Fella's Roll-Off Waste Disposal, Inc. Status: Closed DOAH Final Order on Friday, September 4, 2015.

Summary: School Board's home rule powers rendered inapplicable a county ordinance requiring solid waste generated within the county to be disposed of within the county.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOOD FELLA'S ROLL - OFF WASTE

DISPOSAL, INC.,

Appellant ,

vs. Case No. 15 - 2826

CITRUS COUNTY, BOARD OF COUNTY

COMMISSIONERS,

Appellee .

_______________________________/

FINAL ORDER

Pursuant to notice , oral argument was held in this case on

Ju ly 17 , 2015, before Lawrence P. Stevenson, a duly - designated

Administrative Law Judge, in Inverness , Florida .

APPEARANCES

For Appellant : Clark A. Stillwell , Esquire

Law O ffice of Clark A. Stillwell, LLC

320 U.S. Highway 41 South

Inverness , Florida 3 4450

For Appellee : Denise A. D ymond Lyn, Esquire

Citrus County Attorney

110 North Apopka Avenue

Inverness , Florida 3 4450

PRELIM INARY STATEMENT

Pursuant to section 82 - 77, Citrus County Code (C.C.C.),

Appellant Good FellaÓs Roll - Off Waste Disposal, Inc. (Good

FellaÓs or Appellant) , seeks review of the Order on

Administrative Hearing (Order) entered by the c ounty

a dministrator of Cit rus County on March 27, 2015. Appellant

filed its request that the case be referred to the Division of

Administrative Hearings (DOAH) for appellate proceedings with

both the c ounty a dministrator and the Citrus County Board of

County Commissioners (Board) on April 16, 2015 , accompanied by a

Notice of Appeal that outlined AppellantÓs objections to the

Order. The Board voted on May 13, 2015, to refer the case to

DOAH. The DOAH case was initiated on May 20, 2015.

The Order was entered following a March 23, 2 015, hearing

on allegations by the director of the Citrus County Division of

Solid Waste Management, acting as the c oordinator under section

82 - 77 , that Good FellaÓs violated section 82 - 101, C.C.C.,

regarding the certification of collectors of solid waste and

section 82 - 78, C.C.C., regarding the transporta tion of solid

waste out of the c ounty. The c ounty a dministrator, acting as

the hearing officer under section 82 - 77, found that Good FellaÓs

had transported 253.29 tons of solid waste outside of the c ounty

in violation of section 82 - 78 and that Good FellaÓs had failed

to submit a properly completed and executed hauler certification

in violation of section 82 - 101(a). The Order required Good

FellaÓs to pay $6 ,078.96 in lost revenue to the c ounty, a fine

of $ 40,000 ($500 per violation , with each of 80 loads of solid

waste transported out of the county counted as a violation ), and

administrative costs of $52.10, for a total of $46,131.06.

The Record of the underlying proceeding was filed at DOAH

by Appellee on May 20, 2015. At the undersignedÓs request,

Appellee filed a second copy of the Record with numbered pages

on June 29, 2015. The Record consists of 143 pages and includes

the Order ; the Notice of Appeal ; the transcript of the hearing

below ; chapter 82, C .C.C., and the exhibits filed at the hearing

below.

ISSUES

Good FellaÓs raises four issues on appeal . Two of those

issues involve the administrative hearing process that resulted

in the Order : (1) whether the c ounty a dministrator should have

recused him self from acting as the hearing officer in the case

below; and (2) whether the Board improperly denied Good FellaÓs

a hearing on its asserted request to transport solid waste

outside of the county. For the reasons explained below, Good

FellaÓs contentions as to these issues lack merit. Two of the

issues raised by Good FellaÓs are substantive ; (3) whether, by

virtue of its contract with the Citrus County School Board

(School Board), Good FellaÓs is not subject to the restrictions

of section 82 - 78 when disp osing of the solid waste generated by

the School Board; and (4) whether the findings of fact in the

Order were based on competent substantial evidence. Because

issue (3) is dispositive of the merits of the case, there is no

need to reach issue (4).

BACKG ROUND

Citrus County owns and operates the Citrus County Landfill.

Good FellaÓs is a commercial waste hauler that was certified to

collect and haul waste in Citrus County. Good FellaÓs was

certified pursuant to a solid waste disposal agreement it

entered with Citrus County on February 22, 2011. The agreement

provided that Good FellaÓ s would haul the solid waste it

collects within the boundaries of Citrus County to the Citrus

County Landfill.

In August 2014, Good FellaÓs was awarded a contract to haul

the School Board Ós solid waste from its facilities in Citrus

County . In September 2014, the County became aware that the

contract called for Good FellaÓs to transport the School BoardÓs

solid waste to a Class I licensed landfill outside of Citrus

County.

T he County objected to Good FellaÓs disposing of solid

waste generated within Citrus County anywhere other than the

Citrus County Landfill. On December 2, 2014, the Board took up

an agenda item calling for a discussion of Good FellaÓs taking

waste out of cou nty in apparent violation of section 82 - 78. The

discussion resulted in the BoardÓs voting to allow Good FellaÓs

to take the School BoardÓs solid waste out of the county without

penalty , while Citrus County staff reviewed the validity of

section 82 - 78. This waiver of section 82 - 78 ran from

December 2, 2014 , through January 29, 2015.

Following the staff review of the ordinance, the Board

voted on January 27, 2015, to rescind the temporary waiver of

section 82 - 78 and to send Good FellaÓs a cease - and - desist letter

as regards hauling solid waste outside the county. The letter

was sent on January 29, 2015, over the signature of Charlie

Gatto, the interim director of the Citrus County Division of

Solid Waste Management.

In a lette r dated February 6 , 2015, Go od FellaÓs general

manager , Marilyn F. Connell , requested that Good FellaÓs be

placed on the agenda for the BoardÓs February 24, 2015 , meeting

to address the disposal of municipal solid waste (MSW) related

to its contract with the School Board, as well as disposal of

Ðother MSW collected in Citrus County to be removed from Citrus

County.Ñ In an email to Ms. Connell dated February 9, 2015, the

BoardÓs second v ice c hairman, Scott Carnahan, stated, ÐThank you

for the letter but we will not allow your company or any other

company to remove any garbage from our county. IÓm willing to

sit down and come to some form of an agreement. Our policy has

been in place for many years and we will not change it for any

reason. I hope you understand our position because i tÓs has

[sic] been tested and we have prevailed.Ñ

In a certified letter to Good FellaÓs dated March 2, 2015,

titled ÐStatus on Certification Upgrade/Continued Compliance,Ñ

Mr. Gatto wrote, ÐOn Thursday February 19th, Good FellaÓs and

their attorney met wi th County Administration and at that time

they informed the County that they would not execute the

haulerÓs affidavit, nor bring the School District waste to the

CountyÓs Landfill. They further stated that all of their other

commercial account waste is be ing disposed at the CountyÓs

Landfill.Ñ Mr. GottoÓs letter informed Good FellaÓs as follows:

The Citrus County Division of Solid Waste

has scheduled a public hearing before Randy

Oliver, County Administrator, to hear

evidence as to why the County should n ot

assess fines and revoke the certification of

Good FellaÓs Roll - Off Service to collect

solid waste in the County.

As noted above, the hearing was held on March 23, 2015.

County Administrator Charles Randy Oliver presided at the

hearing and entered the Order.

The hearing was conducted pursuant to section 82 - 77, titled

ÐPenalties for violation of a rticle,Ñ which provides as follows,

in relevant part:

(a) The coordinator may, upon probably [sic]

cause to believe that a collector has

violated the terms o f this article, [1/]

schedule a hearing before the county

administrator on the question of whether a

collector may be subject to fines, payment of

lost revenue and/or whether the certification

shall be suspended or revoked. Prior to a

hearing, at least ten days' notice shall be

given by registered or certified mail, to the

certification holder at his last known

address. After a hearing, the county

administrator may levy fines up to $500.00

per violation, require payment of revenue

lost to the county due to such acts of the

collector, suspend or revoke any such

certification for committing acts in

violation of this article, gross incompetency

or negligence in conducting work in the

trade, misrepresentation of any sort,

financial irresponsibility, conviction of a

felony, or for permitting a certification to

be used by any other person for the purpose

of conducting business pursuant to this

article. The severity of such suspension or

revocation shall bear a reasonable relation

to the severity of the offense. Upon

petition of the aggrieved certification

holder, the board of county commissioners

shall review any order that may have been

given by the county administrator levying

fines, requiring payment of lost revenue,

suspending or revoking any certification an d

the evidence submitted in support thereof,

provided that notice of petition shall have

been given by the person who has been subject

to penalties, to the county administrator and

the board of county commissioners within 30

days after the entry by the cou nty

administrator of the order of penalties. In

lieu of a hearing before the board of county

commissioners, the board may appoint a

hearing officer to hear the appeal. The

hearing officer shall be a member of the

Florida Bar for at least five years. In no

case should the hearing before the board of

county commissioners or a hearing officer be

held no later than 45 days from the filing of

the notice of appeal. If the penalties

should be affirmed by the board of county

commissioners, the aggrieved certifi cation

holder may appeal from any such order of

affirmance to the county circuit court within

30 days after entry of such order of

affirmance. The appeal shall be certiorari

and be governed by the rules of appellate

procedure. Failure to petition for rev iew

within the 30 - day limits imposed by this

section shall forever bar the review

action . . . .

DISCUSSION

Procedural D ue P rocess I ssues

The first issue raised by Good FellaÓs is that the c ounty

a dministrator should have recused himself from actin g as the

hearing officer. Good FellaÓs acknowledges that section 82 - 77

contemplates a quasi - judicial hearing before the c ounty

a dministrator acting as the hearing officer. However, Good

FellaÓs argues that the BoardÓs prior involvement in the case,

and t he c ounty a dministratorÓs presence at the meetings in which

the Board voted to take action against Good FellaÓs, should have

led to the appointment of an outside hearing officer who was not

compromised by his proximity to and employment by the Board.

Good FellaÓs alleges no direct conflict of interest on the part

of the c ounty a dministrator beyond the fact that he is an

employee of the Board. 2/

In Jennings v. Dade County , 589 So. 2d 1337, 1340 (Fla. 3d

DCA 1991), the court set s forth the standard regardi ng the

quantum of due process required in a quasi - judicial hearing:

[W] e note that the quality of due process

required in a quasi - judicial hearing is not

the same as that to which a party to full

judicial hearing is entitled. See Goss v.

Lopez , 419 U.S. 565, 95 S. Ct. 729, 42 L.

Ed. 2d 725 (1975) ; Hadley v. Department of

Admin. , 411 So. 2d 184 (Fla. 1982) . Quasi -

judicial proceedings are not controlled by

strict rules of evidence and procedure. See

Astore v. Flo rida Real Estate CommÓn , 374

So. 2d 40 (Fla. 3d DCA 1979); Woodham v.

Williams , 207 So. 2d 320 (Fla. 1st DCA

1968) . Nonetheless, certain standards of

basic fairness must be adhered to in order

to afford due process. See Hadley , 411 So.

2d at 184; City of Miami v. Jervis , 139 So.

2d 513 (Fla. 3d DCA 1962). Consequently, a

quasi - judicial decision based upon the

record is not conclusive if minimal

standards of due process are denied. See

Morgan v. United States , 298 U.S. 468, 480 -

81, 56 S. Ct. 906, 80 L. E d. 1288 (1936);

Western Gillette, Inc. v. Arizona Corp.

CommÓn , 121 Ariz. 541, 592 P.2d 375 (Ct.

App. 1979) . A quasi - judicial hearing

generally meets basic due process

requirements if the parties are provided

notice of the hearing and an opportunity to

be heard . . . .

In Seiden v. Adams , 150 So. 3d 1215, 1219 (Fla. 4th DCA

2014), the court noted that in a quasi - judicial hearing, due

process is Ðflexible and calls for such procedural protections

as the particular situation demands.Ñ Citing Jennings , t he

court stated that notice and an opportunity to be heard

generally satisfy due process in a quasi - judicial proceeding,

which must be Ðessentially fair.Ñ 150 So. 3d at 1219 ( quoting

Carillon Cmty. Residential v. Seminole Cnty . , 45 So. 3d 7, 10

(Fla. 5th DCA 2010) ) .

In Koehler v. Fl orida Real Estate Comm ission , 390 So. 2d

711 (Fla. 1980), a real estate agent challenged the

constitutional validity of the statute under which the Florida

Real Estate Commission sought to impose discipline on the

agentÓs licens e. Specifically, the agent asserted that the

infirmity in the statute was Ðthat it provides for the

commission, through its staff, to have investigative and

prosecutorial functions as well as final adjudicative functions

in disciplinary proceedings.Ñ Id . at 711. The court relied

largely on Withrow v. Larkin , 421 U.S. 35, 95 S. Ct. 1456, 43 L.

Ed. 2d 712 (1975) , in rejecting the agentÓs claim that the mixed

investigative, prosecutorial , and adjudicative functions denied

due process in the absence of speci fic evidence establishing

prejudice. The court quoted the following passage from Withrow

v. Larkin :

The contention that the combination of

investigative and adjudicative functions

necessarily creates an unconstitutional risk

of bias in administrative adju dication . . .

must overcome a presumption of honesty and

integrity in those serving as adjudicators;

and it must convince that, under a realistic

appraisal of psychological tendencies and

human weakness, conferring investigative and

adjudicative powers o n the same individuals

poses such a risk of actual bias or

prejudgment that the practice must be

forbidden if the guarantee of due process is

to be adequately implemented.

Koehler , 390 So. 2d at 713 ( quoting Withrow v. Larkin , 421 U.S.

at 47, 95 S. Ct. at 1464 ) .

The Seiden court noted that, given the Ðpresumption of

honesty and integrity in those serving as adjudicators,Ñ the

mere appearance of bias that might disqualify a judge does not

require disqualification in a quasi - judicial proceeding.

Seiden , 1 50 So. 3d at 1220. 3/

Based on the standard described in the cited cases, Good

FellaÓs did not demonstrate grounds for recusal of the c ounty

a dministrator from performing the role expressly provided for

him by section 82 - 77.

The second issue raised by Good FellaÓs is that the Board

improperly denied Good FellaÓs request, pursuant to section 82 -

78, for a hearing on its request to transport solid waste

outside of the county.

Section 82 - 78, titled ÐTransportation of solid waste out of

county,Ñ provides as follo ws:

It shall be unlawful to dispose of solid

waste generated within the county outside of

the county. All solid waste shall be

disposed of at a sanitary landfill, except

that construction waste and land - clearing

debris may be disposed of at a C & D

landfi ll. A collector, with prior approval

of the board of county commissioners, may be

allowed to transport solid waste outside of

the county to a state - approved solid waste

management facility, as defined in F.S.

§ 403.703. Prior to granting approval for

suc h out - of - county transport, the board of

county commissioners must determine that the

quantity of solid waste being transported

will not adversely impact the financial

ability of the county to operate its resource

recovery, management program and solid wast e

management program. Nothing in this section

shall be construed to prohibit the out - of -

county transport of solid waste, the portion

of which is separated at the point of

generation or after collection and intended

for purposes of recycling or the control ling

or disposing of hazardous waste.

The record does not establish that Good FellaÓs ever clearly

requested prior approval of the Board to transport solid waste

outside of the county. The temporary approval from December 2,

2014 , through January 29, 201 5 , was granted on the BoardÓs own

initiative. Good FellaÓs did submit a letter dated February 6,

2015, requesting to be placed on the BoardÓs agenda to ÐaddressÑ

the disposal of solid waste outside the county. This request did

not expressly state that Go od FellaÓs was seeking the BoardÓs

approval, and the Board reasonably read the letter in light of

Good FellaÓs prior statements that it did not need the BoardÓs

approval to transport and dispose of the School BoardÓs solid

waste outside of Citrus County. Good FellaÓs contention that it

was denied an opportunity to request approval pursuant to section

82 - 78 is without merit.

Substantive L aw I ssues

The third issue is Good FellaÓs contention that the Board

lacked jurisdiction to enforce section 82 - 78 against Good

FellaÓs , because the company was hauling solid waste out of the

county pursuant to its contract with the School Board, an entity

whose home - rule powers render section 82 - 78 unenforceable

against it.

Citrus CountyÓs authority to adopt section 82 - 78 is derived

from section 403.713, Florida Statutes, titled Ð Ownership and

control of solid waste and recovered materials ,Ñ which provides

as follows:

(1) Nothing in this act or in any local act

or ordinance shall be construed to limit the

free flow of solid waste across municipal or

county boundaries provided such solid waste

is transported or disposed of pursuant to

the provisions of this part. However, any

local government that undertakes resource

recovery from solid waste pursuant to

general law or special act may control the

collection and disposal of solid waste, as

defined by general law or such special act,

which is generated within the territorial

boundaries of such local government and

other local governments which enter into

interlocal agreements for the disposal of

solid waste with the local government

sponsoring the resource recovery facility.

(2) Any local government which undertakes

resource recovery [4/] from solid waste

pursuant to general law or special act may

institute a flow control ordinance for the

purpose of ensuring that the resource

recovery facility receives an adequate

quantity of sol id waste from solid waste

generated within its jurisdiction. Such

authority shall not extend to recovered

materials, whether separated at the point of

generation or after collection, that are

intended to be held for purposes of

recycling pursuant to requi rements of this

part; however, the handling of such

materials shall be subject to applicable

state and local public health and safety

laws.

Section 125.01(1), Florida Statutes, provides as follows,

in relevant part:

(1) The legislative and governing body of a

county shall have the power to carry on

county government. To the extent not

inconsistent with general or special law,

this power includes, but is not restricted

to, the power to:

* * *

(k)1. Provide and regulat e waste and sewage

collection and disposal, water and

alternative water supplies, including, but

not limited to, reclaimed water and water

from aquifer storage and recovery and

desalination systems, and conservation

programs.

2. The governing body of a c ounty may

require that any person within the county

demonstrate the existence of some

arrangement or contract by which such person

will dispose of solid waste in a manner

consistent with county ordinance or state or

federal law. For any person who will

pr oduce special wastes or biomedical waste,

as the same may be defined by state or

federal law or county ordinance, the county

may require satisfactory proof of a contract

or similar arrangement by which such special

or biomedical wastes will be collected by a

qualified and duly licensed collector and

disposed of in accordance with the laws of

Florida or the Federal Government.

Citrus County takes the position that , pursuant to the

cited statutes, its flow control ordinance applies to all

persons 5/ in the co unty, including the School Board. Good

FellaÓs argues that the ordinance does not apply to the School

Board because the School BoardÓs home - rule powers include the

power to control the manner in which it disposes of its solid

waste.

Section 7 of chapter 8 3 - 324, Florida Laws , first provided

for what became known as the Ðhome ruleÑ powers of county school

boards. That provision, currently codified at section 1001.32,

Florida Statutes, provides:

The district school system must be managed,

controlled, operate d, administered, and

supervised as follows:

* * *

(2) DISTRICT SCHOOL BOARD. -- In accordance

with the provisions of s. 4(b) of Art. IX of

the State Constitution, [6/] district school

boards shall operate, control, and supervise

all free public schools in their respective

districts and may exercise any power except

as expressly prohibited by the State

Constitution or general law.

In the first of many consistent opinions construing the

home rule provision, the a ttorney g eneral wrote as follows:

Section 7 of Ch. 83 - 324, Laws of Florida, in

amending s. 230.03(2), F.S., [current s.

removed the definitional

limitations upon the exercise of the

district school board's authority and

clearly provides that a district school

board "may exercise any power except as

expressly prohibited by the State

Constitution or general law." (e.s.) The

word "expressly" is defined as meaning

definitely, explicitly, in direct or

unmistakable terms, directly, distinctly,

not by implication. 35 C.J.S. Expressly p.

342. Se e also definitions of the adjective

"express" in 35 C.J.S. p. 338; Pierce v.

Division of Retirement , 410 So.2d 671, 672

(2 D.C.A. Fla., 1982). Language of a

statute must be construed in its plain and

ordinary sense unless a different

connotation is expres sed in or necessarily

implied from the context of the statute.

See , e.g., Gaulden v. Kirk , 47 So.2d 567

(Fla. 1950); Maryland Casualty Co. v.

Sutherland , 169 So. 679 (Fla. 1936). Where

the legislative intent is clearly manifested

by the language used, co nsidered in its

ordinary grammatical sense, rules of

construction and interpretation are

unnecessary and inapplicable. See ,

e.g., Clark v. Kreidt , 199 So. 333 (Fla.

1940); A. R. Douglass, Inc. v. McRainey , 137

So. 157 (Fla. 1931). Neither this office

nor the courts may add anything to the

statute and the legislative intent must be

ascertained from the plain meaning of the

words used in the statute. See ,

e.g., State ex rel. Harris v. King , 188 So.

122 (Fla. 1939). Thus, I am constrained to

conclude that unless expressly prohibited by

the State Constitution or general law, a

district school board may exercise any power

for school purposes in the operation,

control, and supervision of the free public

schools in its district.

* * *

The type of "home - rul e" power granted to

district school boards by the enactment of

s. 7 of Ch. 83 - 324, Laws of Florida, can be

analogized to the grant of home rule powers

to municipalities for purposes of analyzing

the powers, duties and functions of district

school boards. The Municipal Home Rule

Powers Act, Ch. 166, F.S., granted to

municipalities broad home rule powers. For

example, s. 166.021(1), F.S., of the act,

among other things, provides that

municipalities "may exercise any power for

municipal purposes except when expressly

prohibited by law." Compare this language

to that of s. 7 of Ch. 83 - 324 vesting in

school boards the authority to "exercise any

power except as expressly prohibited by the

State Constitution or general law." Thus,

the rules of law applicable to the exercise

of municipal home rule powers may well be

analogous and applicable to the exercise of

a power by a district school board pursuant

to s. 230.03(2), as amended. The problem of

direct conflict between a statutory

provision and a local municipal enactment

has only recently been directly discussed by

the Florida courts. In City of Miami v.

Rocio Corp. , 404 So.2d 1066, 1069, 1070 (3

D.C.A. Fla., 1981), petition for review

denied, 408 So.2d 1092 (Fla. 1982), the

court stated that "[o]ne impediment to

constitutionally derived legislative powers

of municipalities occurs when the

municipality enacts ordinances which

conflict with state law. . . . Municipal

ordinances are inferior to state law and

must fail when conflict arises." The court

went on to reason that "[a]lthough

legislation may be concurrent, enacted by

both state and local governments in areas

not preempted by the state, concurrent

legislation enacted by municipalities may

not conflict with state law." See

also Campbell v. Monroe County , 426 So.2d

1158 (3 D.C.A. Fla., 1983); Edwards v.

State , 422 So.2d 84 (2 D.C.A. Fla., 1982);

State v. Redner , 425 So.2d 174 (2 D.C.A.

Fla., 1983). While it is obviously

impossible to definitely predict how the

Florida courts will deal with this issue, I

am inclined to the view that, pending

legislative or judicial clarification, a

district school board may exercise any power

for school purposes except as expressly

prohibited by the State Constitution or

general law; however, in the case of a

direct conflict between a state statute and

a rule, policy or other form of legislative

action taken by a district school board, the

state statute would prevail.

Op. AttÓy Gen. Fla. 83 - 72 (1983).

It is noted that while section 1001.32(2) states that a

district school bo ard Ð may exercise any power except as

expressly prohibited by the State Constitution or general law ,Ñ

the a ttorney g eneral has interpreted that language to mean Ðany

power for school purposes in the operation, control, and

supervision of the free public sc hools in its district .Ñ The

limitation indicated by the underscored language is a sensible

reading of the statuteÓs implicit meaning. The a ttorney g eneral

has found that this limitation allows a school board to

determine whether a Ðschool purposeÑ would be served by

providing insurance for its non - employee school board attorney

and his or her assistants. Op. AttÓy Gen. Fla. 2003 - 40 (2003).

However, the a ttorney g eneral has also found that the

Ðschool purposeÑ limitation cannot be stretched to allow a

s chool board to donate school funds to a private organization

for the purchase of a projected historical museum and park . Op.

AttÓy Gen. Fla. 84 - 95 (1984). The Attorney General ha s also

found that Ðschool purposesÑ cannot be interpreted as a grant of

gene ral law enforcement powers to a school board so as to permit

a school board to grant arrest powers to its special officers

for violations of law not occurring on school district property.

Op. AttÓy Gen. Fla. 95 - 14 (1995). The a ttorney g eneral has

further opined that a school board may not simply go into

business for itself on the premise that an Ðeducational purposeÑ

would be served by the deposit of the profits into the

districtÓs budget. Op. AttÓy Gen. Fla. 2007 - 45 (2007)(section

1001.32(2) does not au thorize school district s to receive funds

as a quid pro quo for services rendered merely because such

funds would be deposited into the school budget; question was

whether school district s could enter contract with municipality

to construct a vehicle maint enance facility to be used by the

municipality . ).

In the instant case, the means and methods of solid waste

disposal appear to fall broadly within the concept of a Ðschool

purposeÑ as regards the S chool B oardÓs control of its own

physica l plant and propert y . District school boards are given

the statutory authority to Ðexercise all powers and perform all

dutiesÑ relating to the school plant, including the approval of

plans Ðfor locating, planning, constructing, sanitating,

insuring, maintaining, protecting, and condemning school

property as prescribed in chapter 1013.Ñ £ 1001.42(11), Fla.

Stat. More specifically, the school board is required to

Provide adequately for the proper

maintenance and upkeep of school plants, so

that students may attend school wi thout

sanitary or physical hazards, and provide

for the necessary heat, lights, water,

power, and other supplies and utilities

necessary for the operation of the schools.

§ 1001.42(11)(c), Fla. Stat. District school boards have the

power to contract, sue , and be sued. § 1001.41(4), Fla. Stat.

It is further noted that these statutes specifically

granting powers to a school board may not be construed as a

limitation on the school boardÓs powers under section

1001.32(2), in the absence of a statute that Ðe xpressly

prohibitsÑ the exercise thereof. School Bd. of Collier Cnty. v.

Fla. Teaching Profession NatÓl Educ. AssÓn , 559 So. 2d 1197,

1198 (Fla. 2d DCA 1990). There is no legal impediment to the

School BoardÓs contracting with Good FellaÓs to haul the Sc hool

BoardÓs solid waste outside of Citrus County.

Section 403.713(1), Florida Statutes, gives any local

government that undertakes resource recovery from solid waste

the authority Ðto control the collection and disposal of solid

waste . . . which is gener ated within the territorial boundaries

of such local government . Ñ The question is whether this

statutory grant of control to Citrus County over the collection

of solid waste Ðexpressly prohibitsÑ the School Board from

exercising its home rule powers in a contrary manner by

contracting to have its solid waste transported outside of

Citrus County.

In deciding cases under the Florida Municipal Home Rule

Act , section 166.021, Florida Statutes, Florida courts have

identified two situations in which local govern ment action is

Ðexpressly prohibitedÑ: Ð(1) where state law expressly preempts

the action, or (2) where there exists a literal incompatibility

or direct conflict between the local ordinance and a state

statute.Ñ DÓAgastino v. City of Miami , 2013 Fla. App . LEXIS

820, * 5 (Fla. 3d DCA 2013) ( citing Tallahassee MemÓl RegÓl Med.

Ctr., Inc. v. Tallahassee Med. Ctr., Inc. , 681 So. 2d 826, 831

(Fla. 1st DCA 1996) ) . ÐExpress pre - emption requires a specific

statement; the pre - emption cannot be made by implication n or by

inference.Ñ City of Hollywood v. Mulligan , 934 So. 2d 1238,

1243 (Fla. 2006) ( quoting Fla. League of Cities, Inc. v. DepÓt of

Ins. & Treasurer , 540 So. 2d 850, 856 (Fla. 1st DCA 1989) ) .

While section 403.713(1) grants control of collection and

dispo sal of solid waste to local government, it does not

specifically state that a school board thereby forfeits its home

rule authority to control the solid waste generated on its

premises.

Preemption is implied when Ðthe legislative scheme is so

pervasive as to evidence an intent to preempt the particular

area, and where strong public policy reasons exist for finding

such an area to be preempted by the Legislature.Ñ Phantom

Clearwater, Inc. v. Pinellas Cnty. , 894 So. 2d 1011, 101 9 (Fla.

2d DCA 2005), appro ved , Phantom of B revard, Inc. v. Brevard

Cnty. , 3 So. 3d 309 (Fla. 2008). The Phantom Clearwater court

explained implied preemption as follows:

Implied preemption is actually a decis ion by

the courts to create pre emption in the

absence of an explicit legi slative

directive. Courts are understandably

reluctant to preclude a local elected

governing body from exercising its local

powers. As well explained by Judge Wolf

in Tallahassee Memorial Regional Medical

Center, Inc. v. Tallahassee Medical Center,

Inc. , 681 So. 2d 826, 831 (Fla. 1st DCA

1996), if the legislature can easily create

express preemption by including clear

language in a statute, there is little

justification for the courts to insert such

words into a statute. In the absence of

express preempt ion, normally a determination

based upon any direct conflict between the

statute and a local law, as discussed in the

next section, is adequate to solve a power

struggle between existing statutes and newly

created ordinances.

894 So. 2d at 1019.

In the in stant case, there is no ground to find an implied

preemption in section 403.713(1). The CountyÓs flow control

ordinance and the School BoardÓs home rule powers are capable of

co - existing. The mere fact that the School Board is exempt from

the ordinance d oes not affect the ordinanceÓs applicability to

all other non - exempt persons. Good FellaÓs has recognized this

compatibility by delivering the solid waste it collects from all

sources , other than the School Board , to the Citrus County

Landfill.

Subsumed w ithin the third issue is the question of Good

FellaÓs failure to submit its annual certification papers

pursuant to section 82 - 101. The president of Good FellaÓs,

Charles Dean, testified that he did not submit the application

because it required him to at test in an affidavit that his

company did not haul any locally produced solid waste outside of

Citrus County. Mr. Dean was , of course , aware that Good FellaÓs

was taking the School BoardÓs waste out of Citrus County and

dumping it in Sumter County. The f orm of the affidavit placed

Mr. Dean in an untenable position , requiring him to either swear

falsely or breach his contract with the School Board. Given the

holding of this O rder, it is suggested that Good FellaÓs be

presented with a customized affidavit that recognizes its right

to haul the School BoardÓs, and only the School BoardÓs, solid

waste outside of Citrus County.

As noted above, the fourth issue raised by Good FellaÓs

contends that the findings of fact in the Order were not based

on competent sub stantial evidence. Given the conclusions

reached as to the third issue, it is not necessary to address

the sufficiency of the findings in the O rder below.

DECISION

Based on the foregoing, the Order on Administrative Hearing

(Order) entered by the c ounty a dministrator of Citrus County on

March 27, 2015, is reversed. Good FellaÓs Roll - Off Waste

Disposal, Inc. , is entitled , under its contract with the Citrus

County School Board , to transport the solid waste generated by

the Citrus County School Board for dis posal outside of Citrus

County, notwithstanding section 82 - 78 of the Citrus County Code.

Good FellaÓs lawful actions are not subject to penalty by Citrus

County.

DONE AND ORDERED this 4th day of September , 2015 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of September , 20 15 .

ENDNOTES

1 / The reference is to Article III of the C.C.C., which includes

section 82 - 101.

2 / Good FellaÓs does allege a conflict on the p art of

Commissioner Carnahan, who made the motion to send the cease and

desist letter at the January 27, 2015 , Board meeting and who

sent the February 9, 2015 , email to Ms. Connell. The alleged

conflict is that Commissioner Carnahan holds a mortgage from FDS

Disposal, Inc., a competitor of Good FellaÓs in Citrus County .

Even if Good FellaÓs allegation were accepted as establishing a

conflict on the part of Commissioner Carnahan, the mere fact

that the c ounty a dministrator is employed by a Board with one

c onflicted member does not establish a conflict on the part of

the c ounty a dministrator. In any event, t he undersigned

concludes that section 82 - 77 does not endow this tribunal with

the authority to rule on alleged voting conflicts on the part of

the Board members themselves .

3/ The undersigned is mi ndful that the cited cases deal with the

situation in which a member of a body such as a School Board or

a county commission , or the body as a whole, sits as the

adjudicator in a quasi - judicial hearing. In the instant case,

it could be argued that the c ounty a dministratorÓs subordinate

position to the Board introduces an additional element of

possible bias. Nonetheless, the tenor of the case law appears

to require more than mere suspicions of potential bias to

disqualify the c ounty a dministrator as an adjudicator,

particularly in a situation where the governing ordinance

expressly calls for him to decide the case.

4/ The record indicates that at some point during this dispute,

Good FellaÓs questioned wheth er Citrus County was undertaking

Ðresource recoveryÑ as defined in section 403.703(28), Florida

Statutes, or, more precisely, whether it was operating a

Ðresource recovery facilityÑ as contemplated by section

403.713(2) and whether its alleged failure to d o so negated its

authority to adopt or enforce section 82 - 78. It appears to the

undersigned that the definition of Ðresource recoveryÑ is

flexible enough to cover Citrus CountyÓs solid waste efforts.

It is also noted that Good FellaÓs did not press this issue in

its appeal.

5/ The parties argued extensively over whether the applicable

definition of ÐpersonÑ is that found in section 403.703(28),

Florida Statutes, which would clearly include the School Board

within its ambit, or that found in section 1.01 (3), Florida

Statutes, which does not expressly encompass government bodies.

Because the question of the scope of the School BoardÓs home

rule powers is not dependent on the statutory definition of

Ðperson,Ñ it is unnecessary to decide this issue.

6 / Se ction (4)(b) of A rticle IX provides: ÐT he school board

shall operate, control and supervise all free public schools

within the school district and determine the rate of school

district taxes within the limits prescribed herein. Two or more

school district s may operate and finance joint educational

programs.Ñ

COPIES FURNISHED :

Denise A. Dymond Lyn, Esquire

Citrus County Attorney

110 North Apopka Avenue

Inverness, Florida 34450

(eServed)

Clark A. Stillwell, Esquire

Law Office of Clark A. Stillwell, LLC

320 U.S. Highway 41 South

Inverness, Florida 34450

(eServed)

Randy Oliver, County Administrat or

Board of County Commissioners

Citrus County Courthouse

110 North Apopka Avenue

Inverness, Florida 34450

Jeffrey Roger s, Director of Public Works

Citrus County Courthouse

110 North Apopka Avenue

Inverness, Florida 34450

NOTICE OF RIGHT S

Section 82 - 77, Citrus County Code, provides that if the

penalties are affirmed, the aggrieved certification holder may

appeal from an y such order of affirmance Ðto the county circuit

court within 30 days after entry of such order of affirmance.

The appeal shall be certiorari and be governed by the rules of

appellate procedure. Failure to petition for review within the

30 - day limits im posed by this section shall forever bar the

review action.Ñ