STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAZAYRI CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-5048

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

In a letter dated July 17, 1996, the Department of Environmental Protection (“Department”) transmitted to Jazayri Construction, Inc., (“Jazayri”) an Invoice, which allegedly reflected the costs incurred by the Department in responding to an “[i]ncident occurring on April 17, 1996, at 2401 SW 30th Avenue, behind building A,” more completely described in Emergency Response Incident Report #96-SE-0155. The Department demanded payment of $13,533.85 within 30 days of the demand and informed Jazayri that the case would be referred to the Department’s Office of General Counsel for collection if payment were not received within that timeframe. The Department also informed Jazayri that its letter constituted final agency action regarding the collection of costs and that it had the right to request an administrative hearing.

Jazayri timely requested an administrative hearing, and the Department referred the case to the Division of Administrative Hearings for assignment of an administrative law judge. In a Notice of Hearing dated November 20, 1996, the case was scheduled for final hearing on February 12, 1997.

On January 28, 1997, Jazayri filed a Motion for Summary Recommended Order in which it asserted that it was not liable for the costs incurred by the Department in removing the abandoned drums which were the subject of the emergency response because there was no causal nexus between Jazayri and the presence of the abandoned drums. Specifically, Jazayri asserted that it was not a present or past owner of the property on which the drums were located; it did not generate the material contained in the drums; it did not transport the drums to the property; it did not arrange for the disposal of the materials contained in the drums; and it did not cause a discharge of any materials onto the property. These assertions were supported by affidavits attached to the motion.

On February 4, 1997, the Department filed its Response to Petitioner’s Motion for Summary Recommended Order, in which it conceded that Jazayri was not the owner of the subject property. The Department represented in the response that, on January 15, 1997, it had notified Jazayri

that it “would withdraw its final agency action upon Jazayri Construction.” The Department filed a Notice of Voluntary Dismissal in which it “voluntarily dismiss[ed] the above- styled action” at the same time that it filed its response to Jazayri’s motion.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED that the Department of Environmental Protection enter a final order finding Jazayri Construction1 not liable for the costs of responding to the incident specified in its letter of July 17, 1996, and cancelling the Invoice for $13,533.85 attached thereto.2

DONE AND ENTERED this 6th day of February, 1997, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.

ENDNOTES

1 The request in the Motion for Summary Recommended Order that a recommendation be included that 95 Warehouse, Inc., a corporate entity related to Jazayri Construction, be found not liable for the costs associated with the incident is

rejected because 95 Warehouse, Inc., was not named in the letter of July 17, 1996, and is not a party to this proceeding. Such a recommendation would be outside the jurisdiction of the Division of Administrative Hearings.

2 It is not appropriate to close this file on the basis of the Notice of Voluntary Dismissal filed by the Department. Jazayri initiated this administrative proceeding by filing its Petition for an Informal Administrative Hearing or in the Alternative a Formal Administrative Hearing. Therefore, while the Department can withdraw its final agency action of July 17, 1996, only Jazayri can voluntarily dismiss its petition.

COPIES FURNISHED:

Larry Morgan

Deputy General Counsel Department of Environmental

Protection

3900 Commonwealth Boulevard, MS# 35

Tallahassee, Florida 32399-3000

Kathelyn M. Jacques Certified Legal Intern Department of Environmental

Protection

3900 Commonwealth Boulevard, MS# 35

Tallahassee, Florida 32399-3000

Richard A. Pettigrew, Esquire Scott Mitchell, Esquire

200 South Biscayne Boulevard Suite 5300 Miami, Florida 33131-2339

Paul H. Amundsen, Esquire Richard W. Moore, Esquire

502 East Park Avenue Tallahassee, Florida 32301

Perry Odom, General Counsel 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-005048

Orders for Case No: 96-005048