STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

P & C ENTERPRISES, INC., a )

corporation d/b/a HARBOR LIGHTS ) RESTAURANT AND MARINA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6648

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

ORDER DENYING MOTION TO DISMISS

AND RECOMMENDED ORDER

This matter came on to be heard by telephonic conference call between Charlene Petersen representing HRS, C. Holt Smith representing the Petitioner, and the Hearing Officer on Respondent's amended motion to dismiss the Petitioner for lack of standing. Prior to hearing, the Petitioner filed its motion to strike or to dismiss the Respondent's motion to dismiss. Extensive argument and exposition regarding the development of the controversy and case was heard.

Each side argued the law which it felt controlled the case.

This case was initiated when a health officer of the Duval County Health Unit cited the Petitioner with official notice of a violation of Subparagraphs 386.041(1)(a) & (b), Florida Statutes, for improperly treated human waste and improperly maintained sewage disposal system on June 16, 1993. On or about July 13, 1993, the Petitioner surrendered occupancy of the premises to the landlord, George Ray Dillmon. Subsequently, Dillmon and HRS entered into a consent agreement October 5, 1993, which provided (1) that the pump-out order to the former operator (P & C) was rescinded, (2) that persons who are not parties to the consent order but whose interests are affected by the order have a right to an administrative hearing pursuant to Section 120.57, Florida Statutes, and that the consent order is final agency action.

The Petitioner filed a timely request for hearing alleging that it had received the official notice, which it characterized as a notice of violation; that it had held a leasehold interest in the property at the time the notice was issued; and that it had not had the opportunity to participate in the informal conferences between HRS and Dillmon and resultant consent order. The Petitioner asserted that it had an interest as the recipient of the original notice, and that HRS had not permitted it to participate in the settlement conferences and consent order.

The Petitioner cited Phibro Resources Corp. v. State, Department of Environmental Regulation, 579 So.2d 118 (Fla. 1stDCA 1991), which appears to be on all fours with the instant case. In summary, the court held that a person originally served with a notice of violation is made a party by statute, and

that having attained party status, the person had a right to participate in any subsequent "proceedings" to arrive at a consent order with regard to the rights of others. The court held it was immaterial that Phibro was a former owner, and that the notice was a "warning."

Further, the court indicated in Phibro, supra, at page 124, its holding would not restrain the Department's discretion pursuant to its statutory powers to dismiss the original notice with prejudice against a person who was not afforded the right to participate in the terms of the consent agreement.

Because the issues addressed in this motion hearing are identical to those raised in the Petitioner's petition, and having determined that the Petitioner was entitled to participate in the proceedings leading to the consent order, there is no need for further hearing in this case and the hearing scheduled for July 27, 1994, is cancelled. Further, because of the procedural nature of the dispute and the lack of disputed issues of material fact, there is no need for further proceedings prior to entry of a recommendation.

RECOMMENDATION

Based upon the foregoing, it is ORDERED:

1. The Department's motion to dismiss is DENIED;

   
   

2. The Department should afford the Petitioner an opportunity to participate in the proceedings arriving at the consent order, or alternatively;

   
   

3. The Department should dismiss the original notice of violation against the Petitioner with prejudice.

DONE and ENTERED this 28th day of July, 1994, in Tallahassee, Florida.

STEPHEN F. DEAN

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 28th day of July, 1994.

COPIES FURNISHED:

C. Holt Smith, III, Esquire Suite 3301

One Independent Drive Jacksonville, FL 32202

Charlene Petersen, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

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 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: 93-006648

Orders for Case No: 93-006648