STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPELETTI BROTHERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 79-1602RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, on September 19 through 21, 1979, in Miami, Florida. This Order is being entered subsequent to the time in which the parties were granted an opportunity to present argument through Memoranda and to present Proposed Orders in this case and subsequent to a determination on the question of the right of Respondent to require an environmental permit or permits in the project which is the subject of this rule case determination.

APPEARANCES

For Petitioner: Robert H. Blank, Esquire and

Paul H. Amundsen, Esquire

Peeples, Earl, Smith, More & Blank, P.A. One Biscayne Tower, Suite 3636

Two South Biscayne Boulevard Miami, Florida 33131

For Respondent: Randall E. Denker, Esquire and

William H. White, Esquire

Department of Environmental Regulation 2600 Blair Stone Read

Tallahassee, Florida 32301 ISSUE

The issue here presented is a rules determination on the question of the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede. See Section 120.56, Florida Statutes.

FINDINGS OF FACT

1. This cause comes on for consideration based upon the First Amended Petition by Capeletti Brothers, Inc., to determine the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, and is presented pursuant to Section 120.56, Florida Statutes.

2. The First Amended Petition also makes allegations concerning the validity of an alleged rule purportedly found in the Notice of Intent to Deny the permit dated October 16, 1978; however, this statement is considered and ruled upon in the companion case, D.O.A.H. Case No. 79-1440R. The reason for this procedural disposition is due to the fact that the original Petition only contains allegations concerning the Letter of Intent to Deny of March 26, 1979, and any attempt on the part of the Petitioner to amend the Petition to include additional rules or purported rules that were not the subject of the original Petition was not deemed appropriate and, consequently, the attack on the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, was allowed to go forward only through an independent case consideration which is the case

   D.O.A.H. 79-1602RX. This approach was adopted to accommodate the notice requirements of Section 120.56, Florida Statutes. In summary, the document entitled "First Amended Petition" has been divided into two cases, D.O.A.H. Case No. 79-1440R dealing with the Letter of Intent to Deny of March 26, 1979, and

   D.O.A.H. Case No. 79-1602RX dealing with the challenge to Rules 17-4.02 and 17- 4.28, Florida Administrative Code.

   
   

3. (The evidential facts and certain related legal conclusions involved in considering the case sub judice, have been the subject of an Order of the undersigned in D.O.A.H. Case 79-891 involving the same parties to this cause, and the evidential fact determinations and legal conclusions in that Order dated December 7, 1979, are hereby incorporated into this Order by reference and through the act of attaching a copy of the prior Order are made a part of the present Order.)

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

5. It is the opinion of the undersigned that the Respondent, State of Florida, Department of Environmental Regulation, is without jurisdiction to require a permit under the terms and conditions of the subject Rules 17-4.02 and 17-4.28, Florida Administrative Code. Therefore, at this point, the Petitioner lacks standing to challenge the rules as being invalid exercises of delegated legislative authority, and the rules challenges are DENIED for lack of standing.

DONE AND ORDERED this 7th day of December, 1979, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Robert H. Blank, Esquire and Paul H. Amundsen, Esquire

Peeples, Earl, Smith, Moore & Blank, P.A. One Biscayne Tower, Suite 3636

Tow South Biscayne Boulevard Miami, Florida 33131

Carroll Webb, Executive Director Joint Administrative Procedures

Committee

120 Holland Building Tallahassee, Florida 32301

Randall E. Denker, Esquire and William H. White, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Ms. Liz Cloud Department of State Room 1802, The Capitol

Tallahassee, Florida 32301

Docket for Case No: 79-001602RX

Orders for Case No: 79-001602RX