STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 94-2800

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and SUWANNEE FARMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this matter came on for hearing before Diane Cleavinger, a duly-designated Hearing Officer of the Division of Administrative Hearings, on February 28, 1995, in Live Oak, Florida.

APPEARANCES

For Petitioner: Stephen C. Bullock

Post Office Box 447 Jacksonville, Florida 32201

For Respondent: Thomas I. Mayton, Jr. (DEP) Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Frederick L. Koberlein (Suwannee Farms) Post Office Drawer 2349

Lake City, Florida 32056-2349 STATEMENT OF THE ISSUES

The issues in this proceeding are whether the Department of Environmental Protection (DEP) should grant a permit to construct a wastewater treatment facility with a rapid rate land application system to Respondent Suwannee Farms and whether Suwannee Farms properly published notice of the Department's intent to issue such a permit.

PRELIMINARY STATEMENT

This cause arose upon the filing of an application to construct a .019 MGD extended aeration wastewater treatment plant and rapid rate land application system (wastewater treatment facility) by Suwannee Farms through one of its partners, Robert Wight.

On January 25, 1994, the Department issued its Intent to Issue the wastewater treatment facility permit to Robert Wight. The Intent to Issue

provided that publication of the Notice of Intent to Issue Permit should be made one time in a newspaper of general circulation in the area affected, within 30 days. Proof of publication of the Notice was to be supplied to the Department at its Northeast District Office, within seven days of the publication.

The Notice of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Petitioner, Geraldine Thomas, heard about the proposed wastewater treatment plant, read the published Notice of Intent, and sent a timely letter to the Department, objecting to issuance of a wastewater treatment facility permit to Suwannee Farms.

The Department treated Petitioner's letter as a petition for an administrative hearing and forwarded the letter to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and offered the testimony of one additional witness. Additionally, Petitioner offered one exhibit into evidence. Respondent, Department of Environmental Protection, called one witness and offered seven exhibits into evidence. Respondent, Suwannee Farms, called two witnesses and offered five exhibits into evidence.

After the hearing, the Respondent, Suwannee Farms, submitted a Proposed Recommended Order on March 10, 1995. Respondent, DEP, joined in Suwannee Farms' Proposed Recommended Order. Petitioner filed a document titled "Final Order Granting Objection to Issuance of Notice of Intent to Issue Permit" on March 10, 1995. The Final Order did not contain separate findings of fact which could be ruled on. However, both parties documents were considered in the preparation of this Recommended Order. Specific rulings on Respondent's proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations.

   
   

2. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority.

   
   

3. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part:

   
   

   Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be

   published one time only within 30 days, in the legal ad section of a newspaper of general

   circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are

   uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication

   to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the

   allotted time may result in the denial of the permit.

   
   

4. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department.

   
   

5. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit.

   
   

6. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd

   
   

7. The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office.

   
   

8. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate.

   
   

9. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules.

   Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met.

   
   

10. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. It is established law that persons whose substantial interests may be affected by proposed agency action must be accorded a point of entry into the proceedings. See: Capeletti Brothers v. Department of Transportation, 362 So. 2d 346, (Fla. 1st DCA 1978). Until accorded notice, actual or constructive, such person has not been offered a point of entry.

    
    

13. Section 403.815, Florida Statutes, authorizes the Department to enact rules requiring an applicant to publish notice of proposed agency action relating to a permit application filed under Chapter 403, Florida Statutes. That statute provides that notice shall be published in a newspaper of general circulation in the area affected. The statute further provides that "the secretary may, by rule, specify the format and size of such notice."

    
    

14. Pursuant to Section 401.815, Florida Statutes, the Department enacted Rule 17-103.150, Florida Administrative Code.

    
    

15. Rule 17-103.150, Florida Administrative Code, provides a method to assure constructive notice is given to all substantially affected persons, and to limit the time within which a request for an administrative hearing may be filed. That rule provides that each person who filed an application for a DER permit may publish a notice of proposed agency action in a newspaper of general circulation in the county in which the activity will be located. If notice is to be published, a person whose substantial interests might be affected by the proposed action must file his request for hearing within 14 days of the date of publication.

    
    

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

    
    

    * * *

    (1)(c) The notice shall be published one time only in the legal ad section of a newspaper of general circulation in the area affected. For

    the purpose of this Rule, "publication in a newspaper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, Florida Statutes, in the county where the activity is to take place . . . .

    * * *

    (2)(c) For the purpose of this rule, "publication in a newspaper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place.

    
    

    Thus, then the Department's rule in its plain language provides that "newspaper of general circulation" means a newspaper meeting the requirements describing such a newspaper contained in Sections 50.011 and 50.031, Florida Statutes. The Department's Notice of Intent to Issue, moreover, states clearly that the publication must be in a newspaper meeting the requirements of Sections 50.011 and 50.031, Florida Statutes.

    
    

17. Section 50.011, Florida Statutes, provides as follows:

    
    

    50.011 Where and in what language legal notices

    to be published. -- Whenever by statute an official or legal advertisement or a publication, or notice in a newspaper has been or is directed or permitted in the nature of or in lieu of process, or for constructive service, or in initiating, assuming, reviewing, exercising or enforcing jurisdiction or power, or for any purpose, including all legal notices and advertisements of sheriffs and tax collectors, the contemporaneous and continuous intent and meaning of such legislation all and singular, existing or repealed, is and has been

    and is hereby declared to be and to have been, and the rule of interpretation is and has been a publication in a newspaper printed and published periodically once a week or oftener, containing

    at least 25 percent of its words in the English language entered or qualified to be admitted and entered as a second-class matter at a post office

    in the county where published, for sale to the public generally, available to the public generally for the publication of official or other notices and customarily containing information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value to the general public. (emphasis supplied)

    
    

18. Section 50.011, Florida Statutes, requires the following of a newspaper utilized for legal notices or service by publication:

    
    

    1. That it be published an printed weekly or more often;

    2. That it contain at least twenty-five percent

       of its words in the English language;

    3. That it be entered or qualified to be admitted

       and entered as second class matter at a post office;

    4. That it be for sale to the public generally;

    5. That it be available to the public generally for the publication of official or other notices; and

    6. That it contain information of a public character or of interest or of value to the residents or owners of property in the county where published, or of interest or of value to the general public.

       
       

19. Section 50.031, Florida Statutes imposes the additional requirement that the newspaper at the time of publication of the notice shall have been in existence for one year.

    
    

20. As found in the recitation of facts above, the Gainesville Sun meets the requirements of Sections 50.011, Florida Statutes, and 50.031, Florida Statutes, and therefore meets the requirement of DEP's rules. See Bio-Tech Tracking Systems, Inc. v. DER, 13 F.A.L.R. 2309 (Final Order dated May 17, 1991); and Central Florida Wetlands Society, et al., v. DER et al., DOAH Case No. 91-6871 (RO issued January 24, 1992), and Bullock v. Suwannee Farms, DEP, DEP Case No. 94-0767 (FO issued October 3, 1994).

    
    

21. Petitioner contends that since the Gainesville Sun is printed outside of Suwannee County, publication in the Gainesville Sun is insufficient on that basis alone. The plain meaning of the language in Sections 50.011 and 50.031, Florida Statutes, reveals, however, that the site of the Gainesville Sun's printing run, the number of newspaper racks from which the newspaper is sold, and the number of actual persons or subscribers who purchase the newspaper are irrelevant. The above statutes clearly only require in this regard that the newspaper involved be for sale to the general public. They contain no requirement that the printing site be in a specific county or that the "general circulation" must be measured by the number of papers sold in a given locality or county. The fact that the newspaper is offered for sale to the general public (regardless of how many papers are actually bought) is what is determinative of "general circulation." So long as the newspaper is offered for sale to the general public, and otherwise meets the criteria of the above statutes, then legal ads may be published in the Gainesville Sun and thus comply with legal requirements dictating publication of such notices or ads in "a newspaper of general circulation."

    
    

22. The statutes merely require that the newspaper be available to the public generally, not to the community as a whole. Available means that it is available for the public to purchase and is held out for sale to the public generally. It does not mean that a determination must be made on a case-by-case basis to see how many members of the public have actually purchased it. The actual number of subscribers who purchase subscriptions is irrelevant under the statute, as the Gainesville Sun is "for sale to the public generally." The Florida Supreme Court, in the case of Culclasure v. Consolidated Bond and Mortgage Co., et al., 114 So. 540 (Fla. 1927), in construing the predecessor to the present Chapter 50, which for these purposes was substantially identical, stated that the Financial News of Jacksonville was a newspaper . . .

    
    

    as defined in Yeager v. Rose, and as contemplated by our constructive service statutes. While it is of especial interest to members of the bar,

    it is broad in its interests, carries limited

    telegraphic or general news, social, religious, political, business, professional, and allied subjects, for the information of the public,

    and has in fact a wide and diversified clientele. These, and not the numerical strength of its subscription list, are the controlling elements which determine the status of a newspaper as

    used in our constructive services statute, and as to whether or not service published therein

    would meet the requirements of due process of law.

    
    

    See also D.J. Johnson v. Taggart, et al., 92 So. 2d 606 (Fla. 1957), State ex rel Miami Leather Cote Co., v. Gray, 39 So. 2d 716 (Fla. 1949).

    
    

23. Petitioner's argument that the publication in the Suwannee Democrat would have been "better" is equally unpersuasive. Compliance with Chapter 50, Florida Statutes, is all that is required. There is no obligation on a permittee to determine the "best" publication.

    
    

24. Finally, Respondent Suwannee Farms demonstrated that it had given reasonable assurances that the proposed wastewater treatment facility met all statutory and rule requirements. There was no evidence to the contrary. Therefore Suwannee Farms is entitled to a construction permit for its proposed facility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit.

DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida.

DIANE CLEAVINGER

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 4th day of May, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

COPIES FURNISHED:

Stephen C. Bullock

P. O. Box 447 Jacksonville, FL 32201

Thomas I. Mayton, Jr. Assistant General Counsel D E P

2600 Blair Stone Rd. Tallahassee, FL 32399-2400

Frederick L. Koberlein

P. O. Drawer 2349

Lake City, FL 32056-2349

Virginia B. Wetherell, Secretary D E P

2600 Blair Stone Rd. Tallahassee, FL 32399-2400

Kenneth Plante General Counsel D E P

2600 Blair Stone Rd. Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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: 94-002800

Orders for Case No: 94-002800