STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAREY C. MILLS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4171

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton II, Hearing Officer of the Division of Administrative Hearings, on June 12, 1989. Neither Mr. Mills nor anybody on his behalf appeared at hearing.

APPEARANCE:

For Petitioner: Richard L. Windsor, Esq.

Stephen K. Hall, Esq. 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 ISSUE

Whether the Department of Environmental Regulation (DER) should grant petitioner's after-the-fact application for a dredge and fill permit?

PRELIMINARY STATEMENT

At the time the final hearing was scheduled to begin, counsel for respondent advised that petitioner was incarcerated, having been convicted of criminal violations of federal environmental laws. The hearing had been scheduled and, on petitioner's motion, continued twice before.

While petitioner's incarceration might have been grounds for a third continuance or for a change of venue, if either had been requested in a timely fashion on that basis, no request of any kind had been made, as far as the hearing officer then knew, and the hearing went forward.

Petitioner did file a request for continuance with the clerk of the Division of Administrative Hearings after, however, the hearing had concluded. As grounds, petitioner asserted the pendency of litigation in state court in an unnamed case bearing the number 86-C-757. Rule 22I-6.017, Florida Administrative Code, requires denial of this untimely request.

FINDINGS OF FACT

No evidence was adduced on which findings of fact could be based.

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. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Here petitioner offered no evidence.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That DER deny petitioner's application for a dredge and fill permit. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida.

COPIES FURNISHED:

Cary C. Mills

Post Office Box 7015 Milton, FL 32570

Richard L. Windsor, Esquire Stephen K. Hall, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Docket for Case No: 88-004171

Orders for Case No: 88-004171