19-003428 Corinne A. Garrett vs. Garber Housing Resorts, Llc, A Florida Limited Liability Company, And Florida Department Of Environmental Protection Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, September 11, 2019.

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

CORINNE A. GARRETT, )

)

Petitioner, )

)

v. ) OGCCASENO. 19-0309

) DOAH CASE NO. 19-3428

GARBER HOUSING RESORTS, LLC, A )

FLORIDA LIMITED LIABILITY COMPANY, )

AND FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

___________________ /

FINAL ORDER

On September 11, 2019, an Administrative Law Judge (ALJ) with the Division of

Administrative Hearings (DOAH) submitted a Recommended Order of Dismissal (RO) to the

Department of Environmental Protection (DEP or Department) in the above captioned

administrative proceeding. A copy of the RO is attached hereto as Exhibit A. No parties filed

exceptions to the recommended order.

This matter is now before the Secretary of the Department for final agency action.

BACKGROUND

On March 27, 2019, the Department issued a Site Rehabilitation Completion Order

(SRCO) to Respondent Garber Housing Resorts, LLC, (Garber Housing) after reviewing the

"Limited Groundwater Assessment" conducted on May 9, 2018, which included a

recommendation for Risk Management Option Level I , No Further Action (NF A) without

Institution Controls.

On April11, 2019, Connie A. Garrett (Garrett) filed a Request for Extension ofTime to

File Petition for Administrative Hearing. The Department granted the request on April19, 2019.

On May 9, 2019, Garrett timely filed a Petition for Administrative Hearing (the "Original

Petition") for the property located at 15743 and 15747 Old U.S. Highway 441, Tavares, Florida

owned by Garber Housing. On July 18, 2019, the Division of Administrative Hearings

("DOAH") dismissed the Original Petition for failure to comply with the requirements of Florida

Administrative Code Rule 28-106.201. DOAH's Order granted Garrett ten days to file an

amended petition that complied with the requirements of Florida Administrative Code Rule 28-

106.201 and did not contain the irrelevant or immaterial allegations as discussed in the Order.

On July 23, 2019, Garrett filed an "Amended Petition." On September 11, 2019, DOAH

dismissed the Amended Petition, with prejudice, in the form of a Recommended Order of

Dismissal for again failing to comply with the requirements of Florida Administrative Code Rule

28-106.201. No parties filed exceptions to the recommended order.

THE RECOMMENDED ORDER OF DISMISSAL

On September 11, 2019, DOAH dismissed the Amended Petition, with prejudice, in the

form of a Recommended Order of Dismissal for again failing to comply with the requirements of

Florida Administrative Code Rule 28-106.201 . The AU found:

• The Amended Petition was legally insufficient because it did not contain allegations of

the specific factual disputes of material fact, the ultimate facts that warrant reversal or

modification of the Department's proposed SRCO, and an explanation ofhow the alleged

facts relate to the applicable rules or statutes; and

• The Amended Petition contains allegations that are not cognizable in this type of

environmental administrative proceeding.

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

Section 120.57(1)(1), Florida Statutes, forbids agency reviewing a recommended order

from rejecting or modifying the findings of fact of an ALJ, "unless the agency first determines

from a review of the entire record, and states with particularity in the order, that the findings of

fact were not based on competent substantial evidence."§ 120.57(1)(1), Fla. Stat. (2019);

Charlotte Cty. v. IMC Phosphates Co., 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009); Wills v. Fla.

Elections Comm 'n, 955 So. 2d 61, 62 (Fla. 1st DCA 2007). The term "competent substantial

evidence" does not relate to the quality, character, convincing power, probative value or weight

of the evidence. Rather, "competent substantial evidence" refers to the existence of some

evidence (quantity) as to each essential element and as to its admissibility under legal rules of

evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm 'n, 671 So. 2d

287, 289 n.3 (Fla. 5th DCA 1996).

Accordingly, the Secretary may not reweigh the evidence presented at a DOAH final

hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See e.g.,

Rogers v. Dep 't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep 't of Envtl.

Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. Sch. Bd., 652 So.

2d 894, 896 (Fla. 2d DCA 1995). The ALJ' s decision to accept the testimony of one expert

witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing

agency, absent a complete lack of any competent substantial evidence of record supporting this

decision. See e.g., Peace River/Manasota Reg 'l Water Supply Aut h. v. fMC Phosphates Co., 18

So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State, Dep 't of HRS, 462 So. 2d 83,

85 (Fla. I st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm 'n, 436 So. 2d 3 83,

389 (Fla. 5th DCA 1983).

If the DOAH record discloses any competent substantial evidence supporting a

challenged factual finding of the ALJ, the agency is bound by such factual finding in preparing

the Final Order. See, e.g., Walker v. Bd. ofProf'l Eng'rs, 946 So. 2d 604,605 (Fla 1st DCA

2006); Fla. Dep 't ofCorr. v. Bradley, 510 So. 2d 1122, 1123 (Fla. 1st DCA 1987). If there is

competent substantial evidence to support an ALJ' s findings of fact, it is irrelevant that there

may also be competent substantial evidence supporting a contrary finding. See, e.g., Constr. Co.

v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc., v. Roberts, 498 So. 2d 622,

623 (Fla. 1st DCA 1986). In addition, an agency has no authority to make independent or

supplemental findings of fact. See, e.g., Fla. Power &Light Co. v. Siting Bd., 693 So. 2d 1025,

1026-1027 (Fla. 1st DCA 1997); North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla.

2d DCA 1994).

Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's

conclusions of law and interpretations of administrative rules "over which it has substantive

jurisdiction." See Barjieldv. Dep 't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001); Deep

Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140, 1141-42 (Fla. 2d DCA 2001). However,

the agency should not label what is essentially an ultimate factual determination as a "conclusion

of law" in order to modify or overturn what it may view as an unfavorable finding of fact. See,

e.g., Stokes v. State, Bd. ofProf'l Eng'rs, 952 So. 2d 1224, 1225 (Fla. 1st DCA 2007). Thus, the

agency's review oflegal conclusions in a recommended order is restricted to those that concern

matters within the agency's field of expertise or "substantive jurisdiction." See, e.g., Charlotte

Cty. v. fMC Phosphates Co., 18 So. 3d at 1 088; G.E.L. Corp. v. Dep 't of Envtl. Prot., 875 So. 2d

1257, 1264 (Fla. 5th DCA 2004).

In addition, agencies do not have jurisdiction to modify or reject rulings on the

admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues

susceptible to ordinary methods of proof that are not infused with [agency] policy

considerations," are not matters over which the agency has "substantive jurisdiction." See

Martuccio v. Dep't ofProf'l Regulation, 622 So. 2d 607,609 (Fla. 1st DCA 1993); Heifetz v.

Dep't of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985); Fla. Power &Light Co.,

693 So. 2d at 1028. Evidentiary rulings are matters within the ALJ's sound "prerogative ... as

the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So. 2d at 609.

If an ALJ improperly labels a conclusion oflaw as a finding of fact, the label should be

disregarded, and the item treated as though it were a conclusion oflaw. See, e.g., Battaglia

Properties, Ltd, v. Fla. Land and Water Adjudicatory Comm'n, 629 So. 2d 161, 168 (Fla. 5th

DCA 1994). However, neither should the agency label what is essentially an ultimate factual

determination as a "conclusion oflaw'' to modify or overturn what it may view as an unfavorable

finding of fact. See, e.g., Stokes, 952 So. 2d at 1225.

CONCLUSION

No exceptions to the findings of fact and conclusions oflaw of the Recommended Order

were timely filed. Having considered the applicable law and being otherwise duly advised, it is

ORDERED that:

A. The ALJ's Recommended Order (Exhibit A) is adopted and incorporated by

reference herein.

B. DEP Site Rehabilitation Order for WCU Site ID: COM 269860 is APPROVED.

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judicial review of the Final Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule

9.110, Florida Rules of Appellate Procedure, with the clerk ofthe Department in the Office of

General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000;

and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the

appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from

the date this Final Order is filed with the clerk of the Department.

Novefhber ·

DONE AND ORDERED this I sf- day in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

NOAH VALENSTEIN

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED ON THIS DATE PURSUANT TO§ 120.52,

FLORIDA STATUTES, WITH THE DESIGNATED

DEPARTMENT CLERK, RECEIPT OF WHICH IS

HEREBY ACKNOWLEDGED.

ClERK

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by

electronic mail to:

Rebecca E. Rhoden , Esq. Lorrain. M. Novak , Esq.

Lowndes , Drosdick , Doster , Kantor & Reed , Department of Environmental Protection

P.A. Office of General Counsel

215 North Eola Drive 3900 Commonwealth Blvd., MS 35

Orlando, FL 32802 Tallahassee, FL 32399 - 3000

[e-mail] Lorraine.m.novak@FloridaDEP .gov

[e-mail]

Mcgregor.love@lowndes-law .com

litcontrol@lowndes-law .com

1 elston@lowndes-law .com

Corinne A. Garrett

31304 Saunders Drive

Tavares, FL 32778

corigarrett(wcomcast.net

this \\ - day of Deeei'H'BeF; 2019 .

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

. ;1 ;: {J

N. WEST GR 'E Go Y

Senior Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

Telephone [phone]

email West.Gregory@FloridaDEP .gov