98-003695 Safe Harbor Enterprises, Inc. vs. Robbie Safe Harbor Marine Enterprises, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Friday, January 29, 1999.

Summary: Denial of application for a general permit to operate a solid waste transfer station where applicant unable to demonstrate the existence of an access road.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SAFE HARBOR ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-3695

)

ROBBIE'S SAFE HARBOR MARINE )

ENTERPRISES, INC., and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on December 10, 1998, in Key West,

Florida.

APPEARANCES

For Petitioner: Roger M. Bernstein, Vice-President

Safe Harbor Enterprises, Inc.

Post Office Box 144235

Coral Gables, Florida 33144

For Respondent, Tracy J. Adams, Esquire

Robbie's Safe Tracy J. Adams, P.A.

Harbor Marine 617 Whitehead Street

Enterprises, Inc.: Key West, Florida 33040

For Respondent, W. Douglas Beason, Esquire

Department of Department of Environmental

Environmental Protection

Protection: 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue presented is whether the application of Respondent

Robbie's Safe Harbor Marine Enterprises, Inc., for a general

permit to construct and operate a solid waste transfer station

should be granted.

PRELIMINARY STATEMENT

Respondent Robbie's Safe Harbor Marine Enterprises, Inc.,

applied to the Department of Environmental Protection for a solid

waste transfer station general permit and published notice of

that application. Petitioner Safe Harbor Enterprises, Inc.,

timely objected to the issuance of a general permit, requesting

an evidentiary proceeding. This cause was thereafter transferred

to the Division of Administrative Hearings to conduct the

proceeding.

The Respondents presented the testimony of Sandra Walters,

Ghaus Minhaj, Robert Reckwerdt, and James T. Edds, Jr. The

Petitioner presented the testimony of Miriam Bernstein, Ray

Gonzalez, and James T. Edds, Jr. Additionally, Petitioner's

Exhibits numbered 1-3, 5, and 6 and Respondents' Exhibits

numbered 1 and 2 were admitted in evidence.

Only Petitioner and Respondent Robbie's Safe Harbor Marine

Enterprises, Inc., filed proposed recommended orders post

hearing. Those documents have been considered in the entry of

this Recommended Order. The transcript of proceedings was not

filed.

FINDINGS OF FACT

1. In April 1998 Respondent Robbie's Safe Harbor Marine

Enterprises, Inc., filed an application with Respondent

Department of Environmental Protection, seeking a general permit

to construct and operate a solid waste transfer station at the

end of Shrimp Road on Stock Island in Monroe County, Florida.

The application was accompanied by the required supporting

documentation, including a site plan and an engineering report.

2. The site plan submitted with the application depicted

access to the transfer station by using Shrimp Road. The access

road was also designated as a private road.

3. What the site plan and remainder of the application did

not reveal is that Shrimp Road, the private road providing access

from the public road system to the proposed solid waste transfer

station, is not owned by Robbie's. Rather, the road is owned by

the adjoining property owner, Petitioner Safe Harbor Enterprises,

Inc. Robbie's is the holder of an easement allowing use of

Shrimp Road.

4. Robbie's published notice of its application for a

general permit to construct and operate a solid waste transfer

station. As a result of that notice, the adjoining property

owner, Safe Harbor Enterprises, Inc., filed the petition

initiating the instant proceeding, objecting to the issuance of a

general permit to Robbie's.

5. On February 2, 1998, prior to Robbie's filing its

application for a general permit to construct and operate its

solid waste transfer station, Robbie's entered into a Consent

Order with the Department which resolved the Department's

allegations that Robbie's had been operating a solid waste

transfer facility without a permit.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the subject matter hereof and the parties hereto. Sections

120.569 and 120.57(1), Florida Statutes.

7. Section 403.087, Florida Statutes, requires a permit for

any stationary installation reasonably expected to be a source of

pollution, unless exempted by Department rule, and authorizes the

Department to promulgate rules for the issuance of permits.

Pursuant thereto, the Department has promulgated Rule 62-701.801,

Florida Administrative Code, allowing the issuance of general

permits for solid waste transfer stations.

8. Petitioner Safe Harbor Enterprises, Inc., objects to the

issuance of a general permit to Robbie's for three reasons:

(a) Robbie's has operated an illegal and unlicensed solid waste

transfer facility; (b) There is no need for Robbie's facility;

and (c) Robbie's has no access since the proposed facility would

expand the intended use of Robbie's limited easement. The first

two arguments are without merit.

9. Rule 62-701.320(3), Florida Administrative Code,

requires the Department to consider prior violations of

applicable statutes and rules relating to the operation of a

solid waste management facility if the applicant is

"irresponsible" as that term is defined. The only evidence

offered in this proceeding as to whether Robbie's is an

irresponsible applicant was twofold: a copy of the Consent Order

which recites that Robbie's has neither admitted nor denied the

Department's allegations, and the testimony of Robbie's president

that a lessee, not Robbie's, operated the illegal facility. Such

evidence falls far short of proving Robbie's to be an

irresponsible applicant.

10. Petitioner also argues that there is no need for

Robbie's facility. However, no authority has been cited, and

none has been found, which would support the argument that the

Department should consider whether the facility is needed.

11. Petitioner's argument regarding the lack of access to

the proposed facility is persuasive. Rule 62-701.801(2), Florida

Administrative Code, requires that an application for a general

permit for a solid waste transfer station include a site plan

which must show entrances, exits, on-site roadways, and access

roads. Robbie's application reflected Shrimp Road to be the

private road which would provide access between the proposed

facility and the public road system. The evidence is

uncontroverted that Robbie's alleged private road is only an

easement and that the owner of the property on which the easement

is located objects to the use of the easement for the purpose of

providing access to a solid waste transfer station.

12. Petitioner offered both evidence and argument that the

easement when created was intended to be limited in use and that

Robbie's proposed expansion of that use to carry vehicles of the

size and weight required for operation of the proposed solid

waste transfer facility is not permitted. See Crutchfield v.

F. A. Sebring Realty Co ., 69 So. 2d 328 (Fla. 1954); Walters,

et al. v. McCall , 450 So. 2d 1139 (Fla. 1st Dist. 1984). The

parties to this proceeding agree that any use or restriction of

the easement can only be adjudicated by a circuit court and

cannot be resolved in this proceeding.

13. Rule 62-701.801, Florida Administrative Code, requires

that the site plan show both the on-site roadways and the access

roads. Robbie's application complies on its face by showing the

easement and labeling it a private road. However, once the owner

of the property disputed the availability of the easement for

access to the proposed facility, it was incumbent upon Robbie's,

if it wished to demonstrate compliance with all requirements for

obtaining a general permit, to resolve the dispute surrounding

the use of the easement. Since the use of the easement is not

resolved, then Robbie's cannot show that it has access roads so

that the facility can be accessed. Accordingly, Robbie's has not

demonstrated reasonable assurance of compliance with all the

conditions precedent to the issuance of a general permit for a

solid waste transfer station, and Robbie's application must be

denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying Robbie's

Safe Harbor Marine Enterprises, Inc.'s, application for a general

permit to construct and operate a solid waste transfer station.

DONE AND ENTERED this 29th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January, 1999.

COPIES FURNISHED:

Roger M. Bernstein, Vice-President

Safe Harbor Enterprises, Inc.

Post Office Box 144235

Coral Gables, Florida 33144

Tracy J. Adams, Esquire

Tracy J. Adams, P.A.

617 Whitehead Street

Key West, Florida 33040

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.