STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERRIT VANTHUL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2410RX

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

FINAL ORDER

Gerrit Vanthul filed a petition pursuant to Section 120.56, Florida Statutes, seeking a determination that the State of Florida, Department of Environmental Regulation Rule 17-16.14, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority. This rule raises certification renewal fees for water and wastewater treatment operators from $20 every two years to $25 every two years.

At the final hearing, Joint Exhibit numbered 1, Petitioner's Exhibits numbered 1-4, and Respondent's Exhibits numbered 1-4 were admitted in evidence. Additionally, Petitioner testified on his own behalf, and Robert Hall testified on behalf of the Respondent.

After the hearing, both parties submitted proposed findings of fact, and Respondent submitted a separate memorandum in support of the validity of the rule. To the extent that any proposed findings of fact have not been adopted in this Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument or conclusions of law.

FINDINGS OF FACT

1. Petitioner is a certified water and wastewater treatment operator whose certification renewal fees were increased by amended Rule 17-16.14.

   
   

2. A notice of proposed rulemaking, a notice of a workshop on the proposed rule, and a notice of a public hearing on the proposed rule were published in the Florida Administrative Weekly, Vol. 9, No. 20, May 20, 1983.

   
   

3. Petitioner attended and made comments at both the public workshop on June 1, 1983, and at the public hearing on June 21, 1983.

   
   

4. Although the June 21, 1983, public hearing on the amendment to Rule 17-

   16.14 was held open for 14 days in order for the petitioner to provide additional information to the Respondent, Respondent indicated at the public hearing that it intended to adopt the rule after 14 days without further notice unless it received additional information.

5. The proposed amendment to Rule 17-16.14 was adopted by Respondent on July 14, 1983, and filed with the Secretary of State on July 15, 1983.

   
   

6. The Economic Impact Statement includes the statement, "Essentially, the burden of supporting the operator certification program will be shifted from all of the taxpayers of the state to the operators themselves." The Economic Impact Statement makes no mention of the fact that many public utilities may pass the increased certification cost on to the consumers of their services.

   
   

7. Respondent currently charges a $15 fee for processing applications, a

   $25 biennial certification renewal fee, and no fee for certification itself. Prior to the amendment to Rule 17-16.14, Respondent charged a $20 biennial certification renewal fee.

   
   

8. The increase in certification renewal fees provides a continuous, efficient, and increasing source of revenue for the certification program. The costs and administrative difficulties with collecting two fees or with increasing application processing fees make raising the certification renewal fee reasonable.

   
   

9. Robert Hall, Respondent's Certification Officer, made several references at the June 21, 1983, public hearing to a report by the Auditor General which stated that Respondent should not charge two separate fees for processing and issuing certificates and further stated that renewal fees should be raised rather than processing fees. Following the hearing, it was discovered that Mr. Hall was in error in his references to the Auditor General report and that such a report from the Auditor General did not, in fact, exist.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.56, Florida Statutes. Petitioner is substantially affected by the provisions of Rule 17- 16.14, Florida Administrative Code, both before and after its amendment.

    
    

11. Section 403.101(3), Florida Statutes (1981), provided as follows:

    
    

    (3) The department is authorized to establish qualifications for, and to examine and certify, water and wastewater treatment plant operators; to issue, deny, revoke, and suspend operator certificates pursuant to its rules and chapter 120; and to charge a fee not in excess of $15 for certification, and to charge a fee not in excess of $20 for application processing and renewal of certification. Certificate renewal shall be biennial, effective January 1, 1980. A fee not to exceed $5 may be charged for the issuance of duplicate certificates. Such fees shall be nonrefundable.

    
    

    Currently, Section 401.101(3), Florida Statutes, as amended by Chapter 82-44, Laws of Florida, provides as follows:

    
    

    (3) The department is authorized to establish qualifications for, and to examine and certify, water and wastewater treatment plant operators;

    to issue, deny, revoke, and suspend operator certificates pursuant to its rules and chapter 120; and to charge a fee not in excess of $15 for certification, and to charge a fee not in excess of $30 for application processing and renewal of certification. In assessing fees authorized by this subsection, the department is directed to adjust the fees as needed within the established limits to ensure that generated revenues from the certification program will equal or exceed the cost of operation. Certificate renewal shall be biennial, effective January 1, 1980. A fee not to exceed $5 may be charged for the issuance of a duplicate certificate. Such fees shall be nonrefundable.

    
    

12. Section 401.101(3), Florida Statutes, does not require that certification, application processing, and certification- renewal fees be apportioned so that each fee pay for that portion of the certification program. Rather, the Legislature has directed Respondent to adjust fees as needed up to the maximum provided in Section 403.101(3), Florida Statutes, so that the certification program as a whole becomes selfsupporting. The increase in the certification renewal fee is a reasonable increase as authorized by statute in that it is administratively efficient and provides a reliable source of funds for the certification program.

    
    

13. The Economic Impact statement prepared for the proposed amended rule, the notice of proposed rulemaking prepared and published for the proposed amended rule, and the public hearing held on that proposed amended rule meet the requirements of Section 120.54, Florida Statutes.

    
    

14. Petitioner has failed to establish that the rule exceeds the legislative authority, that the requirements of the rule are not appropriate to the ends specified in the statute, that the requirements of the rule are not reasonably related to the purpose of the enabling legislation, or that the rule is arbitrary or capricious.

    
    

15. Rule 17-16.14, Florida Administrative Code, is a valid exercise of delegated legislative authority.

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

ORDERED:

Petitioner has failed to establish that Rule 17-16.14, Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, and the petition is accordingly dismissed.

DONE and ORDERED this 28th day of September, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1983.

COPIES FURNISHED:

Gerrit Vanthul Box 460, SR 2

Custer Road

Hernando, Florida 32642

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Room 1802 Tallahassee, Florida 32301

Thomas K. Maurer, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Caroll Webb, Executive Director Administrative Procedures

Committee

Holland Building, Room 120 Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-002410RX

Orders for Case No: 83-002410RX