STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES H. COLVIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2431

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 13, 1991. Petitioner did not appear either in person or through counsel.

APPEARANCES

For Respondent: William H. Congdon, Esquire

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

Whether respondent should admit petitioner to the examination for Class B Wastewater Treatment Plant Operator certification or deny admission for failure to comply with Rule 17-602.300(3), Florida Administrative Code?

PRELIMINARY STATEMENT

After petitioner applied for certification as a Class B Wastewater Treatment Plant Operator, respondent issued a notice of denial of operator certification "based on [petitioner's alleged] failure to document 96 months of total experience, 24 months of actual experience, and successful completion of the required coursework "

In response, petitioner requested a formal administrative hearing. In accordance with Section 120.57(1)(b)3., Florida Statutes (1987), respondent forwarded the request to the Division of Administrative Hearings.

FINDINGS OF FACT

1. At the time and place set for final hearing, neither petitioner nor respondent presented any evidence on which findings of fact could be based.

   CONCLUSIONS OF LAW

   
   

2. Since DER referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1989).

   
   

3. 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). Petitioner failed to meet its burden of proof.

RECOMMENDATION

It is, accordingly recommended that respondent deny petitioner's application for certification as a Class B Wastewater Treatment Plant Operator, without prejudice to the filing of a subsequent application.

RECOMMENDED this 13th day of March, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1991.

COPIES FURNISHED:

Charles H. Colvin 2140 Bay Road

Neptune Beach, FL 32233

William H. Congdon, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

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

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-002431

Orders for Case No: 90-002431