STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VICKI L. WOODWARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1802

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on September 7, 1993, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Vicki L. Woodward, pro se

Happy Traveler Campground 2710 Fountain Boulevard

Tampa, Florida 33609

For the Respondent: Susan Schwartz, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399- 2400 STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Petitioner should be issued a 10 year permit to operate a sewage treatment plant or a 5 year permit as proposed.

PRELIMINARY MATTERS

By Notice dated January 22, 1993, the Respondent, Department of Environmental Protection, indicated its intention to issue a 5 year permit, No. DO29-221380, to operate a sewage treatment plant at the Happy Traveler Campground in Tampa, to Petitioner herein, owner of the facility. The proposed permit contained 20 special conditions to the issue thereof. By letter dated February 4, 1993, Robert E. Wallace, III, P.E., President of Environmental Engineering Consultants, Inc., on behalf of Petitioner, protested conditions 4 and 6 relating to the character of the operator's license required and the requirement for monitoring and reporting certain waste water ingredients respectively. He also requested the permit be issued for 10 years instead of the 5 years proposed. The issue as to conditions 4 and 6 of the propose permit

were resolved prior to hearing. Therefore, the only issue for resolution a the hearing was whether the permit should be issued for 10 years as requested or 5 years as proposed.

The matter was referred to the undersigned for formal hearing. Mr.

Wallace, who purports to be the Petitioner's Qualified Representative, at no time sought qualification by the Hearing Officer to represent Petitioner in these proceedings as required by Rule 60Q-2.008, F.A.C.. Nonetheless, the Initial Order of April 7, 1993 required the parties to respond within 10 days with, inter alia, unavailable hearing dates. Neither party responded timely and on June 29, 1993 the undersigned set the matter for hearing in Tampa on July 13, 1993. Mr. Wallace thereafter sought a change in the hearing date because Petitioner "would not be available due to work commitments until after August 15, 1993." By Amended Notice Of Hearing dated June 14, 1993, the hearing was rescheduled to September 7, 1993 at which time it was convened as scheduled.

Petitioner appeared at the hearing without either counsel or personal representative, indicting she had just been advised that Mr. Wallace was too ill to appear. Counsel for the Department, when asked if she objected to another continuance, objected strenuously contending the matter had been in issue since January, 1993; had been continued at Petitioner's request once before; and that Petitioner was operating in the interim without a valid permit. The objection to any further continuance was sustained.

Neither Petitioner nor Mr. Wallace had at any time requested Wallace be qualified to represent Petitioner herein. His absence was, therefore, not considered by the undersigned to be necessary. However, the undersigned offered Petitioner the opportunity to present evidence and/or her position with regard to the time period for the permit but she declined to proceed without Mr.

Wallace being present.

FINDINGS OF FACT

1. Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceedings. Section 120.57(1), Florida Statutes.

   
   

3. As the applicant herein, Petitioner has the burden to establish, by a preponderance of the evidence, a prima facie case indicating her entitlement to the permit sought. Once this burden is met the burden of going forward with the evidence shifts to the agency which must, thereafter, establish satisfactory grounds for denial.

   
   

4. In this case, Petitioner, by refusing to present any evidence in support of her petition, has failed to carry her burden of proof.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years.

RECOMMENDED this 23rd day of September, 1993, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 23rd day of September, 1993.

COPIES FURNISHED:

Vicki L. Woodward

Happy Traveler Campground 2710 Fountain Boulevard

Tampa, Florida 33609

Susan Schwartz, Esquire Department of Environmental

Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell Secretary

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 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. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-001802

Orders for Case No: 93-001802