99-002725 Department Of Community Affairs vs. Goodson Paving, Inc. Status: Closed Recommended Order on Wednesday, December 1, 1999.

Summary: The Department of Community Affairs is not legally precluded by statutes of limitations or laches from enforcing the reporting and fee provisions of the Emergency Planning and Community Right-to-Know Act for the years 1989 through 1998.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. ) Case No. 99-2725

)

GOODSON PAVING, INC., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A formal hear ing was held before the Division of

Administrative Hearings by Daniel M. Kilbride, Administrative Law

Judge, on October 1, 1999, in Viera, County of Brevard, State of

Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ross Staff ord Burnaman, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

For Respondent: Douglas W. Baker, Esquire

John H. Evans, P.A.

1702 South Washington Avenue

Titusville, Florida 32780

STATEMENT OF THE ISSUES

Whether Petitioner, Department of Community Affairs (the

Department), is legally precluded in this proceeding from taking

agency action to enforce the reporting and fee provisions

required pursuant to Chapter 252, Part II, Florida Statutes,

against Respondent, Goodson Paving, Inc., for the reporting years

of 1989 through 1994, inclusive, by operation and application of

Section 95.011 and Section 95.11(3)(f), Florida Statutes (statute

of limitations); and,

Whether the Department is legally and equitably precluded in

this proceeding from taking agency action to enforce the

reporting and fee provisions required pursuant to Chapter 252,

Part II, Florida Statutes, against Respondent for the reporting

years of 1989 through 1994, inclusive, by operation and

application of Section 95.11(6), Florida Statutes (doctrine of

laches).

PRELIMINARY STATEMENT

This matter began when the Department drafted and forwarded

a Notice of Violation and Intent to Assess a late Fee ("Notice")

to Goodson Paving, Inc., dated April 2, 1999. The Notice was

received by Respondent on April 8, 1999. Upon receipt and review

of the Notice, Respondent timely requested an administrative

hearing to contest the application of the reporting and fee

requirements for the years 1989 through 1994, inclusive. This

matter was referred to the Division of Administrative Hearings on

June 22, 1999. This matter proceeded on the Second Amended

Petition for Administrative Proceedings.

Discovery was initiated and completed, and the formal

hearing was held as scheduled.

Counsel for the parties filed a Pre-hearing Stipulation

prior to the hearing. The only disputed issue of fact was

whether Respondent has a reportable quantity of an extremely

hazardous substance during any reporting year from 1989-1998, and

if so, for which reporting year(s). Official recognition of the

statutes and case law requested by the parties was taken.

Several facts were stipulated. At the hearing, the Department

offered the testimony of Gregg Dawkins, the Administrator for the

Compliance Planning Section for the Division of Emergency

Management, Department of Community Affairs. Respondent offered

the testimony of Tom Goodson, President of Goodson Paving, Inc.

Respondent's Exhibits numbered 1-5 were offered and admitted

without objection. Both parties were advised of their right to

file a proposed recommended order within ten days of the filing

of the transcript. The Transcript was filed with the Clerk of

Division of Administrative Hearings on October 21, 1999. Both

Petitioner and Respondent filed Proposed Recommended Orders on

November 1, 1999.

Based on all of the evidence, the following findings of fact

are determined.

FINDINGS OF FACT

1. The Florida Hazardous Materials Emergency Response and

Community Right to Know Act (the Act), Part II, Chapter 252,

Florida Statutes, was first passed in 1988.

2. The purpose of Act is to provide information to

response personnel in an emergency regarding the type of

chemicals and substances that might be present at a facility.

3. The outreach program conducted by the Department of

disseminating information to facilities which potentially may be

required to report was initiated in 1988 and continued into 1989.

It included mass mailings to over 100,000 facilities; conduct of

regional seminars, which were advertised in newspapers;

establishment of an Internet site; publishing a how-to-comply

handbook; and working with local communities and other state

agencies.

4. There are approximately 15,000 to 16,000 active

facilities reporting under various sections of the Act.

5. The Department did not contact Respondent during the

outreach program.

6. Respondent has been located at 5855 Industrial Drive,

Cocoa, Florida, since April 1989.

7. Respondent reported the following number of employees

to the Florida Department of Labor and Employment Security for

unemployment compensation tax purposes for the last month of each

year, from 1989 through 1998:

1989 24

1990 22

1991 25

1992 30

1993 31

1994 35

1995 37

1996 40

1997 44

1998 45

8. Respondent is in the business of site contracting and

road building/construction and uses diesel fuel which it stores

on-site for fueling its trucks and construction equipment.

Respondent does not distribute the diesel fuel or offer it for

retail sale.

9. The site located at 5855 Industrial Drive, Cocoa,

Florida, has been an asphalt plant and road construction office

since approximately 1949.

10. Respondent stores on-road diesel fuel and off-road

diesel fuel at the site for self-use for completion of contracted

projects.

11. The Brevard County Fire and Rescue Department performs

annual inspection of Respondent's site at 5855 Industrial Drive,

Cocoa, Florida, as well as inspection of the shop, the office,

and the storage tanks.

12. Respondent has completed and filed the State of Florida

Department of Environmental Protection Storage Tank Registration

forms and the State of Florida Environmental Protection Plant

Storage Tank System Inspection Report for every year of operation

since at least 1991.

13. Respondent completed and filed the State of Florida

Department of Environmental Protection Storage Tank Facility

Compliance Inspection Report for the year 1999 on September 8,

1999.

14. Respondent received the State of Florida Department of

Environmental Protection Storage Tank Placard issued in July of

1999 with an expiration date on June 30, 2000.

15. Respondent is in possession of the requisite State of

Florida Storage Tank Third Party Liability and Corrective Action

Policy Declarations with an effective date of January 1, 1999.

16. Respondent has maintained uninterrupted insurance for

the on-site tanks since 1989.

17. Respondent pays a State of Florida Pollutant Tax on

each gallon of diesel fuel purchased through its supplier,

Coastal Refining and Marketing, Inc. The tax is collected by the

supplier and remitted to the State of Florida.

18. The State of Florida Department of Environmental

Protection Storage Tank Facility Compliance Inspection Reports

are filed with the State of Florida Department of Environmental

Protection in Tallahassee, Florida.

19. The Brevard County Fire and Rescue Department is aware

and informed of the chemicals and type of operation located at

Respondent's site at 5855 Industrial Drive, Cocoa, Florida.

20. The only chemicals possessed by Respondent at the site

at 5855 Industrial Drive, Cocoa, Florida, are the aforementioned

diesel fuel tanks, motor oil, hydraulic oil, and four one-gallon

cans of paint.

21. Respondent does not manufacture asphalt or maintain

liquid asphalt at the site at 5855 Industrial Drive, Cocoa,

Florida.

22. Prior to receiving the April 2, 1999, Notice of

Violation and Intent to Assess Late Fee, Respondent had not had

contact with The Department.

23. Respondent has filed the requisite monthly reports to

the State of Florida Department of Revenue and has paid the

requisite road and fuel tax to the State of Florida Department of

Revenue since incorporation.

24. Respondent, Goodson Paving, Inc., does have a current,

valid Occupational License issued by Brevard County, Florida.

25. Respondent's diesel fuel storage containment system is

built to the code issued by Brevard County and is approved by the

Brevard County Inspectors each year.

26. Prior to receiving the April 2, 1999, Notice of

Violation and Intent to Assess a Late Fee from the Department,

Respondent, in the previous ten or eleven years, has had annual

inspections conducted by the Brevard County Fire and Rescue

Department and the other county inspectors; has paid taxes to the

State of Florida Department of Revenue; and has had a valid

Occupational License. Respondent was not informed of the

obligation to report under Part II of Chapter 252, Florida

Statutes.

27. On April 8, 1999, Respondent received the Department's

Notice of Violation and Intent to Assess a Late Fee dated April

2, 1999.

28. Respondent timely requested an administrative hearing

regarding the Department's April 2, 1999, Notice of Violation and

Intent to Assess Late Fee, pursuant to Section 120.569, Florida

Statutes, and implementing rules.

29. The staff of the Department's Division of Emergency

Management Compliance Planning Section who administer the

Emergency Planning and Community Right-to-Know Act ( EPCRA) and

the Act of 1988 are also responsible for assisting the Division's

Emergency Operations Center during activations for disasters such

as hurricanes or fires. During activations, the routine

hazardous materials program duties are subservient to other

Division of Emergency Management duties.

30. Respondent suffered no prejudice from the timing of the

Department's April 1999 Notice of Violation and Intent to Assess

a Late Fee since: (1) the annual inventory forms are required by

federal law; (2) Respondent was able to complete the forms based

upon available information; and (3) no interest, late fee, or

other adverse financial impact will result if the annual fees are

timely paid in response to the notice.

31. Respondent is responsible for the fee obligations under

the statutes and rules for the years 1989-1998, in the total

amount of $832.50.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter. Sections

120.569 and 120.57, Florida Statutes.

33. Part II of Chapter 252, Florida Statutes, is known as

the Florida Hazardous Materials Emergency Response and Community

Right to Know Act of 1988. Pursuant to that Chapter, the Florida

Legislature established a fee and reporting system and authorized

the Department to adopt rules with respect to the fee system and

also allowed the Department to assess a late fee under certain

circumstances. The Department was charged with the

responsibility to administer the program and staff the Florida

State Emergency Response Commission.

34. Prior to the imposition of any late fee, the Depart ment

is required to notify the owner or operator of a facility of the

requirements that have not been met and to provide notice of the

intent to assess a late fee, pursuant to Section 252.85(4),

Florida Statutes.

35. If the owner or operator of a facility responds to a

Section 252.84(4), Florida Statutes, notification by filing the

required reports and paying the required fees within 30 days of

receipt, then no late fee may be assessed.

36. Goodson is a "person" as defined in 42 U.S.C.

Section 11049(7).

37. Goodson operates a "facility" as defined in 42 U.S.C.

Section 11049(4) and Section 252.82(4), Florida Statutes.

38. Diesel fuel is a "hazardous chemical" as defined in

29 C.F.R. Section 1910.1200(c).

39. The operator of a facility that has at or above the

threshold planning quantity of a hazardous chemical during any

calendar year must prepare and file an inventory form with the

appropriate state emergency response commission, local emergency

planning committee and local fire department on or before March 1

of the subsequent year pursuant to 42 U.S.C. Section 11022.

40. From 1988-1998, the threshold planning quantity

established for diesel fuel was 10,000 pounds, pursuant to 42

U.S.C. Section 11021 and 40 C.F.R. Sections 370.40 and 370.41.

41. T he Department has adopted Chapter 9G-14, Florida

Administrative Code, to establish the reporting fees and due

dates as required by Section 252.85, Florida Statutes.

42. The Department has the ultimate burden of persuasion in

this proceeding to prove that Respondent is obligated to file the

reports and pay the fees associated therewith for the reporting

periods of 1989 through 1998, inclusive. Florida Department of

Transportation v. J.W.C., Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

43. Respondent has the b urden to prove the statute of

limitations, and laches defenses that it alleged in its Petition.

Florida Department of Transportation v. J.W.C., Co. , supra at

779, Van Meter v. Kelly , 91 So. 2d 327 (Fla. 1956).

44. The Department is not legally precluded in this

proceeding from taking Section 252.85(4), Florida Statutes,

agency action to enforce the reporting and fee provisions in

Chapter 252, Part II, Florida Statutes, as to Goodson for

reporting years 1989 through 1994, by operation of Sections

95.011 and 95.11, Florida Statutes.

45. Section 95.011, Florida Statutes, "Applicability,"

provides:

A civil action or proceeding, called "action"

in this chapter, including one brought by the

state, a public officer, a political

subdivision of the state, a municipality, a

public corporation or body corporate, or any

agency or officer of any of them, or any

other governmental authority, shall be barred

unless begun within the time prescribed

elsewhere in these statutes.

46. Section 95.11, Florida Statutes, "Limit ations Other

than for Recovery of Real Property," provides in part:

Actions other than for the recovery of real

property shall be commenced as follows: . . .

(3) WITHIN FOUR YEARS- (f) an action founded

on a statutory liability.

47. The plain language o f Section 95.011, Florida Statutes,

"Applicability", refers to an "action" as a "civil action or

proceeding." Accordingly, the statute should not be applied to

preclude the Department from taking "agency action" as that

phrase is defined in Section 120.52(2), Florida Statutes, the

definitions section of the Administrative Procedures Act (APA).

48. While the APA uses the term "proceeding," there is

nothing in either Chapter 95 or in the APA that suggests that

Section 95.011, Florida Statutes, was enacted as limitation on

proceedings intended to help formulate agency action. Section

95.011 was first enacted in Chapter 74-382, Section I, Laws of

Florida (1974), the same year that the 1974 Legislature enacted

the APA. Chapter 74-310, Laws of Florida (1974), Section 120.57

was said to apply "in all proceedings, in which the substantial

interest of a party are determined by an agency." A "civil

action or proceeding," in contrast, refers to a judicial remedy.

49. If the phrase "civil action or proceeding" were

intended to include both judicial and administrative proceedings,

then the Legislature would not have used the term

"administrative" to modify "proceedings" in enactment of the

Florida Equal Access to Justice Act, Section 57.111, Florida

Statutes. The Act uses the phrase "civil actions and

administrative proceedings." Section 57.111(2), Florida Statutes

(1999) (emphasis supplied).

50. Likewise, in the Florida Governmental Conflict

Resolution Act, Sections 164.101-164.1061, Florida Statutes, the

Legislature clearly differentiated between "court proceedings"

and "administrative proceedings." E.g., Section 164.1041(1),

Florida Statutes (1999).

51. Mercy Hospital v. Department of Professional

Regulation, Bd. Of Medial Examiners , 467 So. 2d 1058, 1060 (Fla.

3d DCA 1985), involved a hospital's appeal of a circuit court

order that enforced two administrative subpoenas seeking medical

records. The hospital claimed that the records were privileged

and did not comply with the subpoenas. The Department

successfully petitioned the circuit court for enforcement

pursuant to Sections 120.58 and 120.69, Florida Statutes. The

District Court rejected the hospital's argument that Section

768.40(4), Florida Statutes (1983), conferred protection since

the statute applied "in any civil action." The Court

distinguished an "administrative disciplinary investigation" from

a "civil action" and relied upon a Maryland case that

distinguished "administrative disciplinary proceedings" generally

from "civil actions." Id. , citing Unnamed Physician v.

Commission on Medical Discipline , 285 Md. 1, 400 A.2d 396, cert.

denied , 444 U.S. 868 100 S.Ct. 142, 62 L.Ed.2d 92 (1979).

52. Florida courts have failed to consider whether

administrative proceedings are included in the definition of

"action" in Section 95.011, Florida Statutes. Instead, the

courts have ruled that statutes of limitation are not applicable

in administrative enforcement proceedings brought in the name of

the State, in the absence of contrary legislative intent. Ong v.

Department of Professional Regulation , 565 So. 2d 1384, 1386

(Fla. 5th DCA 1990)[appeal of Final Order suspending dentist's

license and imposing fine and reprimand]; Farzad v. Department of

Professional Regulation , 443 So. 2d 373, 375 (Fla. 1st DCA 1983)

(appeal of Final Order imposing reprimand on physician);

Landes v. Department of Professional Regulation , 441 So. 2d 686

(Fla. 2nd DCA 1983), rev. denied , 451 So. 2d 849 (Fla. 1984)

(appeal of Final Order revoking real estate license and

registration pursuant to Chapter 475, Florida Statutes);

Donaldson v. State Department of Health and Rehabilitative

Services , 425 So. 2d 145 (Fla. 1st DCA 1983) (appeal of Final

Order suspending license to sell hearing aids and imposing fine).

53. There is no case ho lding that Section 95.11(3), Florida

Statutes, is a bar to any "agency action" under the APA,

generally, nor to the Department's instant action to provide

Respondent with written notice of violation of the fee and

reporting requirements and of the agency's intent to assess a

late fee pursuant to Section 252.85(4), Florida Statutes, if the

reports and fees are not timely submitted.

54. Even assuming arguendo , that the term "proceeding" in

Section 95.11(3), Florida Statutes, includes Section 120.57,

Florida Statutes, proceedings, the courts have determined that

the statute of limitation is inapplicable to administrative

enforcement proceedings to protect the public health, safety, and

welfare.

55. The Department's proposed agency action that is

challenged herein seeks to require Respondent to file overdue

annual reports and to pay overdue annual registration fees.

Section 252.85, Florida Statutes. The proposed agency action

also serves as a necessary predicate for the imposition of late

fees if Respondent fails to timely file the overdue annual

reports and pay the overdue annual registration fees after

receipt of notice. Section 252.85(4), Florida Statutes. Thus,

the Department has placed Respondent on notice that the

corporation has violated the reporting requirements and that

failure to timely submit the reports will result in an adverse

financial impact, "a late fee."

56. The Department's action at issue in this proceeding

could result in an action that is "penal in nature" in that it

may serve to deprive Respondent of property--money required to

pay late fees. Thus, while the Department's action does not

involve the imposition of professional licensee discipline, this

proceeding is more similar to such proceedings than it is to a

license application proceeding. Department of Banking and

Finance, Div. Of Securities and Investor Protection v. Osborne

Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996).

57. In Latham v. Florida Com'n on Ethics , 694 So 2d 83, 85

(Fla. 1st DCA 1997) rev. dismissed , 719 So. 2d 287 (Fla. 1998),

the Court considered whether administrative proceedings before

the Commission on Ethics are penal in nature for the purposes of

determining the proper standard of proof. The Commission's Final

Order finding that a public officer had violated Section

112.313(6), Florida Statutes, was entered following a formal

hearing at the Division of Administrative Hearings. On appeal,

the Court reversed the Final Order because the Commission had

applied the "preponderance of the evidence" standard instead of

the "clear and convincing evidence" standard. Based upon

consideration of Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern & Co. , supra ,

the Court rejected the Commission's claim that the proceeding was

not penal in nature even though the Commission only reports

findings and recommendations to "the proper disciplinary

official," who then takes action based upon the Commission's

report.

58. Section 252.85(4), Florida Statutes, provides an

exclusive listing of "limitations" on The Department's authority

to impose a late fee. The list of limitations does not include

any statue of limitations. A more specific statute covering a

particular subject governs over a general statute. McKendry v.

State , 641 So. 2d 45, 46 (Fla. 1994).

59. During its statutory review of Chapter 252, Part II,

Florida Statutes, the 1996 Legislature granted a conditional

waiver of past due annual fees. Section 2 of Chapter 96-308,

Laws of Florida (1996) provides:

[a]ny owner or operator of a facility which

is required to register, report, and pay fees

under Part II of this chapter, but which has

not complied as of October 1, 1996, will be

granted a waiver of the past due annual fees,

if the owner or operator registers and

reports between October 1, 1996, and

December 31, 1996. This fee waiver only

applies to first time, self-reporters and

does not apply to facilities that have been

noticed by the Department of Community

Affairs for failure to report prior to

October 1, 1996.

See statutory notes to Section 252.85, Florida Statutes (1995),

and Section 252.85, Florida Statutes (Supp. 1996).

60. If the four-year statute of limitations applied, then

the 1996 waiver provision would, in part, be unnecessary. For

example, a facility owner who was responsible, but had failed to

comply, only for reporting years 1989-1991, would not need a

waiver if the statute of limitations applied. A fundamental rule

of statutory construction requires courts to avoid reading

statutes so as to render any part meaningless. Unruh v. State ,

669 So. 2d 242 (Fla. 1996).

61. The cases cited by Respondent to support its statute of

limitations and laches defenses are inapposite. Each of the

cases is readily distinguishable since it does not involve the

State's attempting to defend an exercise of its police power in

an administrative hearing. Putman Berkley Group, Inc. v. Dinin ,

734 So. 2d 532 (Fla. 4th DCA 1999); Hullinger v. Ryder Truck

Rental, Inc. , 548 So. 2d 231 (Fla. 1989); Scott v. Otis Elevator

Co. , 524 So. 2d 642 (Fla. 1988); Associated Coca Cola, et al. v.

Special Disability Trust Fund , 508 So. 2d 1305 (Fla. 1st DCA

1987); and Van Dussen v. Southeast First Nat'l Bank of Miami , 478

So. 2d 82 (Fla. 3d DCA 1985).

62. Section 95.11(6), Florida Sta tutes (Supp. 1998),

provides:

LACHES.-Laches shall bar any action unless it

is commenced within the time provided for

legal actions concerning the same subject

matter regardless of lack of knowledge by the

person sought to be held liable that the

person alleging liability would assert his or

her rights and whether the person sought to

be held liable is injured or prejudiced by

the delay. This subsection shall not affect

application of laches at an earlier time in

accordance with law.

63. Section 95.11(6), Florida Statutes, -- the defense of

statutory laches -- is inapplicable to this proceeding since this

is not an action in equity. Corinthian Investments, Inc. v.

Reeder , 555 So. 2d 871, 874-875 (Fla. 2nd DCA 1989), rev. denied

563 So. 2d 631 (Fla. 1990); Cook v. Central and Southern Fla.

Flood Control Dist. , 114 So. 2d 691, 693 (Fla. 2nd DCA 1959).

64. Notwithstanding the obvious application of laches in

equitable instead of legal actions, the doctrine has arisen in

administrative proceedings. In Devine v. Department of

Professional Regulation, Bd. Of Dentistry , 461 So. 2d 994 (Fla.

1st DCA 1984), a dentist-applicant appealed a Final Order that

dismissed his challenge to the scoring of his dental practice

examination. The examinations were administered in 1974, 1975,

1976 and 1978. The applicant filed a petition in 1981 and he

challenged the 1976 examination score. The agency routinely

destroyed the records in 1978 and as a result the applicant was

unable to offer them into evidence. The hearing officer held

that the doctrine of laches and/or equitable estoppel barred the

challenge and the Court stated that it found "no error" in that

order. The Court held that the doctrine of laches was properly

applied, distinguishing its decision in Farzad v. Department of

Professional Regulation , 443 So. 2d 373 (Fla. 1st DCA 1983). The

Court stated that the policy for rejecting laches as a defense to

"proceedings conducted by the sovereign to protect the public"

supported the application of laches with respect to protecting

the public from unqualified professionals. Devine v. Department

of Professional Regulation, Board of Dentistry , supra at 997.

65. In Farzad v. Department of Professional Regulation , 443

So. 2d 373 (Fla. 1st DCA 1983), the Court noted that the doctrine

of laches "usually utilized in equitable proceedings, is . . .

inapplicable to this administrative license revocation

proceeding."

66. To the extent that the four elements of laches are

applicable to the instant proceeding, they can be stated as

follows: (1) starting with reporting year 1989, Respondent had a

reportable quantity of diesel fuel under EPCRA and the Florida

Hazardous Materials Emergency Response and Community Right-to-

Know Act of 1988, but Respondent failed to file the required

reports and to pay the required registration fees; (2) The

Department gained access to the Florida Department of

Environmental Protection's storage tank inventory database

sometime in the past few years which included an entry for

Goodson Paving, Inc.; (3) Respondent did not know that the

Department intended to enforce the registration and fee

requirements until April, 1999; and (4) Respondent is not

prejudiced by this proceeding since Respondent is obligated to

file the required reports under the EPCRA and each day that the

reports are late is a continuing violation, and no late fee can

be assessed if Respondent files the reports and pays the required

fees (without interest) within thirty days of the final order in

this proceeding. Sections 252.85 and 252.86, Florida Statutes.

67. Section 252.86(3), Florida Statutes, authorizes the

Department to bring a "cause of action" and seek to impose "civil

penalties" in a Florida circuit court for any violation that is

actionable under EPCRA Sections 325 or 326.

68. Goodson's failure to file annual reports required by

EPCRA Section 312 is actionable under EPCRA Section 325(c)(1).

Each day that an annual report is overdue constitutes a separate

violation. EPCRA Section 325(c)(3). The civil penalty for each

violation is not to exceed $25,000 for each violation. EPCRA

Section 325(c)(2).

69. The Legislature has given the Department the option to

enforce the annual reporting requirements in two ways. On the

one hand, the Department may bring an action in circuit court to

impose civil penalties of up to $25,000 for each day that a

report is late without the necessity of any notice to the

facility owner or operator. On the other hand, the Department

may provide written notice(s) to the owner or operator of the

overdue report and subsequently render an order that imposes late

fee(s). All fees and civil penalties collected under either

option are earmarked for the same trust fund to ensure that the

State program is self-sustaining. Section 252.84, Florida

Statutes.

70. Since each day that a report is overdue is a separate

violation, the Department could seek civil penalties is circuit

court against Goodson for each annual report for the years 1989

through 1998, inclusive, and neither the statute of limitations

nor laches would serve to bar such an action.

71. Accordingly, it would be absurd for the Legislature to

have intended to bar the assessment of late fees beyond a

four-year period from the date that a report was late since no

such limitation would be imposed on the much harsher civil

penalty provisions authorized by the same statute.

72. The Department is not legally precluded in this

proceeding from taking Section 252.85(4), Florida Statutes,

agency action to enforce the reporting and fee provisions in

Chapter 252, Part II, Florida Statutes, as to Respondent for

reporting years 1989 through 1994, by operation of Section

95.11(6), Florida Statutes, the statutory laches provision.

RECOMMENDATION

That the Secretary of the Department of Community Affairs

enter a final order which holds that:

1. Respondent is responsible for reporting diesel fuel in

excess of the threshold planning quantity pursuant to 42 U.S.C.

Section 11022 and Sections 252.85 and 252.87, Florida Statutes,

for the years 1989-1998 inclusive; and for the fee obligations

under Section 252.85, Florida Statutes, and Rule 9G-14.003(3),

Florida Administrative Code, for the reporting years 1989-1998,

inclusive.

2. Respondent owes the Department annual registration fees

totaling $832.50 if the reports and fees are submitted within

thirty days of the Department's final order in this matter.

3. Respondent can be assessed additional late fees if all

required reports, fees, and late fees are not timely paid, in

accordance with Section 252.85(4)(b)3, Florida Statutes.

DONE AND ENTERED this 1st day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

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 1st day of December, 1999.

COPIES FURNISHED:

Ross Stafford Burnaman, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 325A

Tallahassee, Florida 32399-2100

Douglas W. Baker, Esquire

John H. Evans, P.A.

1702 South Washington Avenue

Titusville, Florida 32780

Jim Robinson, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 315

Tallahassee, Florida 32399-2100

Steven M. Seibert, Secretary

Department of Community Affairs

2555 Shumard Oak Boulevard, Suite 100

Tallahassee, Florida 32399-2100

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 must be filed with the agency that will

issue the Final Order in this case.