STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY COUNTY BOARD OF COUNTY )

COMMISSIONERS, )

)

Petitioner, )

vs. ) CASE NO. 88-2461

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondent, )

and )

)

STONE CONTAINER CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 25, 1989. The parties are represented by counsel:

Nevin Zimmerman

Assistant County Attorney

221 McKenzie Avenue Panama City, FL 32401 For Petitioner

Steve Hall

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 For Respondent

Terry Cole

Oertel, Hoffman, Fernandez and Cole Post Office Box 6507

Tallahassee, Florida 32314-6507 For Intervenor

These proceedings arose on petitioner's application for an extension of its temporary operating permit authorizing it to operate a 37 million gallon a day wastewater treatment plant near Military Point Lagoon in Bay County, Florida.

ISSUE

Whether petitioner's application for extension of its temporary operating permit, No. 1003-107768, should be granted?

FINDINGS OF FACT

At the time and place appointed for final hearing the applicant failed to appear and present evidence.

In a telephone conversation shortly after the time scheduled for hearing, counsel for the applicant informed the hearing officer that he did not intend to appear and that he had no objection to an order denying the pending application, because other avenues were being pursued.

CONCLUSIONS OF LAW

The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour,Inc., v. State Division of Beverage,

347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Departyment of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That respondent deny petitioner's application for a temporary operating permit.

DONE AND ENTERED this 5th day of June, 1989, in Tallahassee, Leon County, Florida.

ROBERT T. BENTON,II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989.

COPIES FURNISHED:

Steve Hall

Assistant General Counsel Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Nevin J. Zimmerman Assistant County Attorney

221 McKenzie Avenue Panama City, FL 32401

Terry Cole

Oertel, Hoffman, Fernandez and Cole Post Office Box 6507

Tallahassee, Florida 32314-6507

Docket for Case No: 88-002461

Orders for Case No: 88-002461