94-002800 Geraldine Thomas vs. Suwannee Farms And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, May 4, 1995.

Summary: Gainesville sun-newspaper general circulation for Suwanee County even though not printed there- "published" means disseminated in statute and rule.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 94-2800

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and SUWANNEE FARMS, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to Notice, this matter came on for hearing before Diane

Cleavinger, a duly-designated Hearing Officer of the Division of Administrative

Hearings, on February 28, 1995, in Live Oak, Florida.

APPEARANCES

For Petitioner: Stephen C. Bullock

Post Office Box 447

Jacksonville, Florida 32201

For Respondent: Thomas I. Mayton, Jr.

(DEP) Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Frederick L. Koberlein

(Suwannee Farms) Post Office Drawer 2349

Lake City, Florida 32056-2349

STATEMENT OF THE ISSUES

The issues in this proceeding are whether the Department of Environmental

Protection (DEP) should grant a permit to construct a wastewater treatment

facility with a rapid rate land application system to Respondent Suwannee Farms

and whether Suwannee Farms properly published notice of the Department's intent

to issue such a permit.

PRELIMINARY STATEMENT

This cause arose upon the filing of an application to construct a .019 MGD

extended aeration wastewater treatment plant and rapid rate land application

system (wastewater treatment facility) by Suwannee Farms through one of its

partners, Robert Wight.

On January 25, 1994, the Department issued its Intent to Issue the

wastewater treatment facility permit to Robert Wight. The Intent to Issue

provided that publication of the Notice of Intent to Issue Permit should be made

one time in a newspaper of general circulation in the area affected, within 30

days. Proof of publication of the Notice was to be supplied to the Department

at its Northeast District Office, within seven days of the publication.

The Notice of Intent to Issue was published in the Gainesville Sun on

February 5, 1994. Petitioner, Geraldine Thomas, heard about the proposed

wastewater treatment plant, read the published Notice of Intent, and sent a

timely letter to the Department, objecting to issuance of a wastewater treatment

facility permit to Suwannee Farms.

The Department treated Petitioner's letter as a petition for an

administrative hearing and forwarded the letter to the Division of

Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and offered the

testimony of one additional witness. Additionally, Petitioner offered one

exhibit into evidence. Respondent, Department of Environmental Protection,

called one witness and offered seven exhibits into evidence. Respondent,

Suwannee Farms, called two witnesses and offered five exhibits into evidence.

After the hearing, the Respondent, Suwannee Farms, submitted a Proposed

Recommended Order on March 10, 1995. Respondent, DEP, joined in Suwannee Farms'

Proposed Recommended Order. Petitioner filed a document titled "Final Order

Granting Objection to Issuance of Notice of Intent to Issue Permit" on March 10,

1995. The Final Order did not contain separate findings of fact which could be

ruled on. However, both parties documents were considered in the preparation of

this Recommended Order. Specific rulings on Respondent's proposed findings of

fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In December, 1993, Suwannee Farms, through one of its partners, Robert

Wight, applied to the Department of Environmental Protection for a wastewater

treatment facility permit to be constructed on part of its property in Suwannee

County, Florida. The Department of Environmental Protection requested

clarification or amendment of the initial application. Suwannee Farms amended

its initial application and the Department determined that the applicant had

provided reasonable assurances of compliance with Florida Statutes and the

Department's rules and regulations.

2. The permittee listed on the initial application is Robert Wight.

Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The

permit is to be issued in the name of Suwannee Farms. Issuance in the name of

the partnership is within the scope of the Department of Environmental

Protection's authority.

3. On January 25, 1994, the Department issued its Intent to Issue the

permit. The intent to issue provided in part:

Pursuant to Section 403.815, F.S. and DER

Rule 17-103-150, Florida Administrative Code,

you (the applicant) are required to publish

at your own expense the enclosed Notice of

Intent to Issue Permit. The Notice shall be

published one time only within 30 days, in the

legal ad section of a newspaper of general

circulation in the area affected. For the

purpose of this rule, "publication in a news-

paper of general circulation in the area

affected" means publication in a newspaper

meeting the requirements of Sections 50.011

and 50.031, F.S., in the county where the

activity is to take place. Where there is

more than one newspaper of general circulation

in the county, the newspaper used must be one

with significant circulation in the area that

may be affected by the permit. If you are

uncertain that a newspaper meets these require-

ments, please contact the Department at the

address or telephone number listed below. The

applicant shall provide proof of publication

to the Department, at Northeast District Office,

7825 Baymeadows Way, Suite B-200, Jacksonville,

Florida 32256-7577, within seven (7) days of

the publication. Failure to publish the notice

and provide proof of publication within the

allotted time may result in the denial of the permit.

4. The Notice Of Intent to Issue was published in the Gainesville Sun on

February 5, 1994. Proof of publication was timely filed with the Department.

5. The Gainesville Sun is a daily newspaper printed in Alachua County,

Florida. The paper is available for purchase by the general public in Suwannee

County, Florida and is sold to the general public at newspaper racks.

Additionally, the Sun is available to residents of Suwannee County, including

the area of the proposed project, through subscription and delivery via

newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general

circulation delivered on a daily basis to homes in the area affected by the

proposed permit.

6. The Gainesville Sun contains national, state and local news stories,

including local events in Suwannee County. Additionally, the Sun contains a

legal ad section. The information in the Sun is of a public character and of

interest and value to the residents of Suwannee County.dd

7. The Sun has been published for more than a year in both Alachua and

Suwannee Counties. At least twenty-five percent of the words in the Sun are in

the English language and is entered as second class mail at the post office.

8. There is no question that the Gainesville Sun meets the legal

requirements of the Department for publication of Notices of Intent to Issue

Permits in Suwannee County. Therefore, publication of the Intent to Issue

Permit for the proposed wastewater facility involved in this case was

appropriate.

9. Through discovery and after an order compelling such answers, the

Petitioner listed her objections to the issuance of the permit generally as

noncompliance with nitrate level regulations, noncompliance with fencing

regulations, noncompliance with set-back regulations and noncompliance with

excessive noise and odor regulations. The evidence at the hearing demonstrated

that the proposed wastewater treatment facility and land application meet the

requirements of Florida Statutes and the Department's rules in the areas

specified by the Petitioner as well as other areas of the statutes and rules.

Suffice it to say that Petitioner offered no evidence which even remotely

demonstrated that the Suwannee Farms permit did not meet these requirements or

in some way failed to reasonably assure the Department that the requirements for

a wastewater treatment permit with rapid rate land application would be met.

10. Indeed, the only evidence in this case demonstrated that the

technology proposed for the wastewater plant and rapid rate land application has

been in use for a long time and has historically either met or exceeded the

Department's requirements for nitrates (not to exceed 12 milligrams per liter),

noise, odor and fecal coliform. There was no evidence submitted that would

cause one to conclude that the technology for this facility would not perform as

it has in the past at other locations. The plans of the facility clearly show

adequate fencing and that the percolation ponds will be set-back at least 500

feet from any wells and at least 100 feet from any property line. Both fencing

and pond location meet the requirements of Florida Statutes and Departmental

rule. Given these facts, Petitioner has shown its entitlement to a construction

permit for its proposed project.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

12. It is established law that persons whose substantial interests may be

affected by proposed agency action must be accorded a point of entry into the

proceedings. See: Capeletti Brothers v. Department of Transportation, 362 So.

2d 346, (Fla. 1st DCA 1978). Until accorded notice, actual or constructive,

such person has not been offered a point of entry.

13. Section 403.815, Florida Statutes, authorizes the Department to enact

rules requiring an applicant to publish notice of proposed agency action

relating to a permit application filed under Chapter 403, Florida Statutes.

That statute provides that notice shall be published in a newspaper of general

circulation in the area affected. The statute further provides that "the

secretary may, by rule, specify the format and size of such notice."

14. Pursuant to Section 401.815, Florida Statutes, the Department enacted

Rule 17-103.150, Florida Administrative Code.

15. Rule 17-103.150, Florida Administrative Code, provides a method to

assure constructive notice is given to all substantially affected persons, and

to limit the time within which a request for an administrative hearing may be

filed. That rule provides that each person who filed an application for a DER

permit may publish a notice of proposed agency action in a newspaper of general

circulation in the county in which the activity will be located. If notice is

to be published, a person whose substantial interests might be affected by the

proposed action must file his request for hearing within 14 days of the date of

publication.

16. Rule 17-103.150, Florida Administrative Code, provides, in pertinent

part:

* * *

(1)(c) The notice shall be published one time

only in the legal ad section of a newspaper of

general circulation in the area affected. For

the purpose of this Rule, "publication in a

newspaper of general circulation in the area

affected" means publication in a newspaper

meeting the requirements of Sections 50.011 and

50.031, Florida Statutes, in the county where

the activity is to take place . . . .

* * *

(2)(c) For the purpose of this rule, "publication

in a newspaper of general circulation in the area

affected" means publication in a newspaper meeting

the requirements of Sections 50.011 and 50.031,

F.S., in the county where the activity is to take

place.

Thus, then the Department's rule in its plain language provides that "newspaper

of general circulation" means a newspaper meeting the requirements describing

such a newspaper contained in Sections 50.011 and 50.031, Florida Statutes. The

Department's Notice of Intent to Issue, moreover, states clearly that the

publication must be in a newspaper meeting the requirements of Sections 50.011

and 50.031, Florida Statutes.

17. Section 50.011, Florida Statutes, provides as follows:

50.011 Where and in what language legal notices

to be published. -- Whenever by statute an official

or legal advertisement or a publication, or notice

in a newspaper has been or is directed or permitted

in the nature of or in lieu of process, or for

constructive service, or in initiating, assuming,

reviewing, exercising or enforcing jurisdiction or

power, or for any purpose, including all legal

notices and advertisements of sheriffs and tax

collectors, the contemporaneous and continuous

intent and meaning of such legislation all and

singular, existing or repealed, is and has been

and is hereby declared to be and to have been, and

the rule of interpretation is and has been a

publication in a newspaper printed and published

periodically once a week or oftener, containing

at least 25 percent of its words in the English

language entered or qualified to be admitted and

entered as a second-class matter at a post office

in the county where published, for sale to the public

generally, available to the public generally for the

publication of official or other notices and

customarily containing information of a public

character or of interest or of value to the residents

or owners of property in the county where published,

or of interest or of value to the general public.

(emphasis supplied)

18. Section 50.011, Florida Statutes, requires the following of a

newspaper utilized for legal notices or service by publication:

a. That it be published an printed weekly or

more often;

b. That it contain at least twenty-five percent

of its words in the English language;

c. That it be entered or qualified to be admitted

and entered as second class matter at a post office;

d. That it be for sale to the public generally;

e. That it be available to the public generally for

the publication of official or other notices; and

f. That it contain information of a public character

or of interest or of value to the residents or

owners of property in the county where published,

or of interest or of value to the general public.

19. Section 50.031, Florida Statutes imposes the additional requirement

that the newspaper at the time of publication of the notice shall have been in

existence for one year.

20. As found in the recitation of facts above, the Gainesville Sun meets

the requirements of Sections 50.011, Florida Statutes, and 50.031, Florida

Statutes, and therefore meets the requirement of DEP's rules. See Bio-Tech

Tracking Systems, Inc. v. DER, 13 F.A.L.R. 2309 (Final Order dated May 17,

1991); and Central Florida Wetlands Society, et al., v. DER et al., DOAH Case

No. 91-6871 (RO issued January 24, 1992), and Bullock v. Suwannee Farms, DEP,

DEP Case No. 94-0767 (FO issued October 3, 1994).

21. Petitioner contends that since the Gainesville Sun is printed outside

of Suwannee County, publication in the Gainesville Sun is insufficient on that

basis alone. The plain meaning of the language in Sections 50.011 and 50.031,

Florida Statutes, reveals, however, that the site of the Gainesville Sun's

printing run, the number of newspaper racks from which the newspaper is sold,

and the number of actual persons or subscribers who purchase the newspaper are

irrelevant. The above statutes clearly only require in this regard that the

newspaper involved be for sale to the general public. They contain no

requirement that the printing site be in a specific county or that the "general

circulation" must be measured by the number of papers sold in a given locality

or county. The fact that the newspaper is offered for sale to the general

public (regardless of how many papers are actually bought) is what is

determinative of "general circulation." So long as the newspaper is offered for

sale to the general public, and otherwise meets the criteria of the above

statutes, then legal ads may be published in the Gainesville Sun and thus comply

with legal requirements dictating publication of such notices or ads in "a

newspaper of general circulation."

22. The statutes merely require that the newspaper be available to the

public generally, not to the community as a whole. Available means that it is

available for the public to purchase and is held out for sale to the public

generally. It does not mean that a determination must be made on a case-by-case

basis to see how many members of the public have actually purchased it. The

actual number of subscribers who purchase subscriptions is irrelevant under the

statute, as the Gainesville Sun is "for sale to the public generally." The

Florida Supreme Court, in the case of Culclasure v. Consolidated Bond and

Mortgage Co., et al., 114 So. 540 (Fla. 1927), in construing the predecessor to

the present Chapter 50, which for these purposes was substantially identical,

stated that the Financial News of Jacksonville was a newspaper . . .

as defined in Yeager v. Rose, and as contemplated

by our constructive service statutes. While it

is of especial interest to members of the bar,

it is broad in its interests, carries limited

telegraphic or general news, social, religious,

political, business, professional, and allied

subjects, for the information of the public,

and has in fact a wide and diversified clientele.

These, and not the numerical strength of its

subscription list, are the controlling elements

which determine the status of a newspaper as

used in our constructive services statute, and

as to whether or not service published therein

would meet the requirements of due process of law.

See also D.J. Johnson v. Taggart, et al., 92 So. 2d 606 (Fla. 1957), State ex

rel Miami Leather Cote Co., v. Gray, 39 So. 2d 716 (Fla. 1949).

23. Petitioner's argument that the publication in the Suwannee Democrat

would have been "better" is equally unpersuasive. Compliance with Chapter 50,

Florida Statutes, is all that is required. There is no obligation on a

permittee to determine the "best" publication.

24. Finally, Respondent Suwannee Farms demonstrated that it had given

reasonable assurances that the proposed wastewater treatment facility met all

statutory and rule requirements. There was no evidence to the contrary.

Therefore Suwannee Farms is entitled to a construction permit for its proposed

facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Department of Environmental Protection issue a Final Order

granting the application of Suwannee Farms for a wastewater treatment facility

and rapid land application permit.

DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida.

___________________________________

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of

Respondent's Proposed Findings of Fact are adopted in substance, insofar as

material.

COPIES FURNISHED:

Stephen C. Bullock

P. O. Box 447

Jacksonville, FL 32201

Thomas I. Mayton, Jr.

Assistant General Counsel

D E P

2600 Blair Stone Rd.

Tallahassee, FL 32399-2400

Frederick L. Koberlein

P. O. Drawer 2349

Lake City, FL 32056-2349

Virginia B. Wetherell, Secretary

D E P

2600 Blair Stone Rd.

Tallahassee, FL 32399-2400

Kenneth Plante

General Counsel

D E P

2600 Blair Stone Rd.

Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit exceptions to this Recommended Order. All

agencies allow each party at least 10 days in which to submit written

exceptions. Some agencies allow a larger period within which to submit written

exceptions. You should contact the agency that will issue the final order in

this case concerning agency rules on the deadline for filing exceptions to this

Recommended Order. Any exceptions to this Recommended Order should be filed with

the agency that will issue the final order in this case.