STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TUXEDO FRUIT COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3308

)

FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and ) FLORIDA SUN CEMENT COMPANY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

On June 6, 1989, Petitioner, Tuxedo Fruit Company (Tuxedo), filed a Petition for Formal Administrative Proceedings which sought to challenge an extension of two permits issued to Respondent, Florida Sun Cement Company, Inc. (Florida Sun). The permits affected by the challenge, AC-56-86471 and AC-56- 87310, were issued by the Department of Environmental Regulation (Department) in 1984 and allowed the construction of a bulk cement transfer facility adjacent to property owned by Tuxedo. The case was forwarded to the Division of Administrative Hearings on June 22, 1989. Thereafter, Florida Sun and the Department timely filed motions to dismiss. Tuxedo filed its response in opposition to the motions to dismiss on July 6, 1989.

The central issue in this case is whether Tuxedo has waived its right to challenge the approval of the permit extension by failing to timely seek a point of entry or file a petition for hearing. Because the resolution of this issue is dispositive of the matter, the remaining grounds for dismissal raised by the parties are not addressed. It should be noted, however, that Tuxedo has not alleged facts sufficient to establish that the extension (as opposed to the 1984 construction permits) affects its substantial interests. Were this the sole basis for dismissal, Tuxedo would be granted leave to amend. Mary Waqoner v.

Florida Medical Facilities, Inc., and State of Florida, Department of Environmental Regulation, 10 FALR 5286 (November 4, 1987).

For purposes of reviewing the motions to dismiss, the allegations of fact set forth in the petition have been deemed true. Further, official recognition has been taken of the record in DOAH case nos. 89-1121 and 89-1271. Rule 221- 6.020, Florida Administrative Code. Formal hearing in those cases (which involved the same parties) was held July 10-14, 1989, and the proposed recommended orders are due August 23, 1989. This recommended order is entered pursuant to Rule 221-6.016, Florida Administrative Code.

Pertinent to this matter are the following allegations set forth in the petition:

5. DER informally granted the extension of the 1984 permits in a letter dated November 25, 1985 from Mr. Roy Duke of DER to Mr.

Roger Charles. The letter is attached as Exhibit "A" and incorporated herein. Notice of the extension was not published in a newspaper or otherwise provided so that substantially affected persons had an opportunity to be heard. Tuxedo Fruit first became aware that the 1984 hermits had been issued and that a subsequent extension had been granted to Florida Sun Cement in August, 1988. It was not until May 31, 1989, however, that Tuxedo Fruit was informed by its legal counsel of its right to a point of entry to contest the extension of the permits. (e.s.)

In DOAH case no. 89-1121, Tuxedo challenged the Intent to Issue a permit for a barge-mounted unloading device for the Florida Sun facility which had been permitted in 1984. The petition in DOAH case no. 89-1121 was filed with the Department on February 21, 1989. The permit challenged, designated as AC 56- 157174, related to the unloading system which Florida Sun intended to utilize for the facility permitted in 1984, but did not address modifications, if any, to the main facility allowed by those permits. On April 12, 1989, the undersigned ruled on a motion to dismiss in DOAH case no. 89-1121, and found:

Florida Sun and the Department have correctly concluded that Petitioner may not challenge the permits issued to Florida Sun in 1984.

The point of entry for a challenge to those permits is long past. In denying the motion to dismiss, the petition has been considered only as a challenge to the permit for the barge-mounted unloader and the potential damages which bay result from that installation.

During the hearing of DOAH case no. 89-1121, evidence was offered regarding the planned operation of the Florida Sun facility, the emissions which may be expected to result from its operation, and the impact on Tuxedo and others which may be expected.

Tuxedo's challenge to the extension of the 1984 permits was filed June 6, 1989. By Tuxedo's allegation, the filing of this petition was approximately ten months after receiving actual notice of the extension and some three months after filing the challenge to the barge-mounted unloader.

In Capeletti Brothers, Inc. v. State, Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), the court found that absent a waiver, an agency must grant an affected party a clear point of entry for Section 120.57 proceedings. In cases where publication is required, the point of entry is generally calculated from the date of publication. In this case, there is no allegation that the Department required publication of the extension sought by Florida Sun.

Rule 17-103.150, Florida Administrative Code, provides, in part:

Publication of a Notice of Application shall be required for those projects which, because

of their size, potential effect on the environment or natural resources, controversial nature, or location, are reasonably expected by the Department to result in a heightened public concern or likelihood of request for administrative proceedings.

There is no requirement which specifies that a request for a permit extension be published. Permits may not be extended longer or remain in effect longer than the time limits established by statute or rule. In this case, Tuxedo has not alleged that the extension given to Florida Sun exceeded a time limit set by statute or rule.

Rule 17-103.155(5), Florida Administrative Code, provides:

(5) When there has been no publication of notice of agency action or notice of proposed agency action as prescribed in Rule 17- 103.150, F.A.C., a person who has actual knowledge of the agency action or has knowledge which would lead a reasonable person to conclude that the Department has taken final agency action, has a duty to make further inquiry within 14 days of obtaining such knowledge by contacting the Department to ascertain whether action has occurred.

The Department shall upon receipt of such an inquiry, if agency action has occurred, promptly provide the person with notice as prescribed by Rule 17-103.150, F.A.C. Failure of the person to make inquiry with the Department within 14 days after obtaining

such knowledge may estop the person from obtaining an administrative proceeding on the agency action.

In this case, Tuxedo's point of entry to challenge the extension of the 1984 permits is calculated in light of the referenced rule. Accordingly, Tuxedo had a duty to make further inquiry and to ascertain the agency action regarding the extension in August, 1988. This it failed to do.

At the minimum, Tuxedo could have raised its challenge to the extension when it filed the petition in case no. 89-1121. To the contrary, paragraph 8 of that petition alleged:

8. On or about October 22, 1985, Manatee Cement Co. requested that the expiration dates of the 1984 permits be extended from May 15, 1986 until November 15, 1989. This request was approved by DER about one month later. No reasons were stated by either Manatee Cement Co. or DER for this action.

A diligent, substantially affected person would have made further inquiry upon learning of the permit request for the barge-mounted unloader (which was published) since its intended use was directly related to the permits which had

been extended and which authorized the cement facility. Under these circumstances, Tuxedo is estopped from challenging the extension and by its failure to act has waived its right to a Section 120.57 proceeding on that basis.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order dismissing the petition challenging the extension of the 1984 permits as untimely filed.

DONE and ENTERED this 24th day of August 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 24th day of August 1989.

COPIES FURNISHED:

Bram D.E. Canter

Haben & Culpepper, P.A.

306 North Monroe Street Tallahassee, Florida 32301

Sylvia M. Alderman

Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A.

215 South Monroe Street, Suite 400 Tallahassee, Florida 32301

Paul H. Amundsen

F. Phillip Blank, P.A. 204-B South Monroe Street

Tallahassee, Florida 32301

Carol A. Forthman Deputy General Counsel

Office of General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-003308

Orders for Case No: 89-003308