Petitioner: JOSHUA L. ROGERS
Respondent: DEPARTMENT OF CORRECTIONS AND DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: J. LAWRENCE JOHNSTON
Agency: Department of Environmental Protection
Locations: Indiantown, Florida
Filed: Jun. 20, 2007
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, August 2, 2007.
Latest Update: Dec. 28, 2024
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION 77 /
PF 9
JOSHUA L, ROGERS,
Petitioner,
vs. OGC CASE NO. 05-0291
; DOAH CASE NO. 07-2763
DEPARTMENT OF CORRECTIONS
and DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondents.
ee ee ee ee ee eee ee
FINAL ORDER
On August 2, 2007, an Administrative Law Judge (“ALJ”) of the Division of
Administrative Hearings (“DOAH”) submitted his Recommended Order of Dismissal
(“RO”) in this administrative proceeding. The RO indicates that a copy was served on
Respondent, Department of Corrections (“DOC”). A copy of the RO was also sent to
Petitioner, Joshua L. Rogers (“Rogers”). No party filed Exceptions to the RO. The RO
is now before me for final agency action.
BACKGROUND
The Department of Environmental Protection (“DEP” or “Department”) and the
DOC entered into a Consent Order on December 8,-2006. The Consent Order requires
certain modifications to the Martin Correctional Institution (“MCI”) drinking water supply
and treatment system or, in the alternative, abandonment and connection of the MC!
system to a regional drinking water utility. The Consent Order also requires public
notice whenever sampling results show that maximum contaminant levels (“MCL”) for
certain drinking water parameters are exceeded.
Petitioner Rogers is a prisoner at MCI and filed a petition for administrative
hearing (‘Petition’)' under sections, 120.569 and 120.57, Florida Statutes, seeking
modification of the Consent Order. The Petition requests that the Consent Order
require that MCI be closed or, in the alternative, that prisoners be provided bottled water
pending completion of the corrective actions in the Consent Order. After the Petition
was referred to DOAH, the ALJ issued an Order to Show Cause, on July 10, 2007. In
the Order the parties were directed to show cause why the Petition should not be
dismissed under Section 120.81(3)(a), Florida Statutes. The parties responded to the
Order to Show Cause and on August 2, 2007, the ALJ issued his RO recommending
that the Department enter a final order dismissing the Petition.
The RO stated that:
Based on a review of the file, including the responses to the
Order to Show Cause, it is clear that Section 120.81(3)(a),
Florida Statutes, applies to Petitioner. Petitioner's argument
against dismissal under the statute essentially is that his
petition should be viewed as a petition under Section
120.54(3)(c) or (7), Florida Statutes, which are exceptions to
the rule that prisoners cannot be parties in administrative
proceedings brought under Chapter 120. But it is clear that
the Petition in this case is one under Sections 120.569 and
120.57, not Section 120.54(3)(c) or (7), Florida Statutes.
On August 10, 2007, the Department received a “Dismissal of Petition for Hearing” from
Petitioner Rogers. Although the Petitioner seeks dismissal of his Petition, the
Department is required to review and consider the RO’s finding that Section
120.81(3)(a), Florida Statutes, applies to the Petitioner. As such, the Department is
1 On June 20, 2007, DEP referred Rogers’ Second Amended Petition to DOAH.
required to enter a final order upon review of the RO. See §120.569, Fla. Stat. (2006);
see also Wiregrass Ranch, Inc., v. Saddlebrook Resorts, 645 So.2d 374 (Fla. 1994)
(reflecting that a party cannot terminate the agency's jurisdiction over its petition by filing
a voluntary dismissal in order to escape unfavorable findings in the recommended
order). .
CONCLUSION
The case law of Florida holds that parties to formal administrative proceedings
must alert reviewing agencies to any perceived defects in DOAH hearing procedures or
in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See
Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida
Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ's
RO concluded that Rogers’ Petition should be dismissed because he is a prisoner within
the meaning of Section 120.81(3)(a), Florida Statutes. Rogers did not file any
Exceptions to the RO, but instead sought to dismiss his Petition after the unfavorable
RO was entered.
Having considered the applicable law in light of the uncontested findings set forth
in the RO, and being otherwise duly advised, it is
ORDERED that:
A. The Recommended Order of Dismissal (Exhibit A) is adopted in its entirety
and incorporated herein by reference.
B. Petitioner Rogers’ Second Amended Petition for administrative hearing is
DISMISSED with prejudice.
Any party to this proceeding has the right to seek judicial review of the Final
Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal
pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk
of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,
M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal
accompanied by the applicable filing fees with the appropriate District Court of Appeal.
The Notice of Appeal must be filed within 30 days from the date this Final Order is filed
with the clerk of the Department.
a
DONE AND ORDERED this @¢_ day of October, 2007, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
WY Mh
MICHAEL W. SOLE
Secretary
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO § 120.52,
FLORIDA STATUTES, WITH THE DESIGNATED
DEPARTMENT CLERK, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED.
Ray Pouchona vloslor
LERK DATE
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
United States Postal Service to:
Anthony B. Miller, Esquire Joshua L. Rogers #H04986
Department of Corrections Martin Correctional Institution
2601 Blairstone Road, Room B452 H04986-Legal Mail
Tallahassee, FL 32399 1150 Southwest Allapattah Road
Indiantown, FL 34956
Claudia Llado, Clerk and
J. Lawrence Johnston, Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
and by hand delivery to:
Ronda L. Moore, Esquire
Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 35
_ Tallahassee, FL 32399-3000
this gat day of October, 2007.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
FRANCINE M. FFOLKES
Senior Assistant General Counsel
3900 Commonwealth Bivd., M.S. 35
Tallahassee, FL 32399-3000
Telephone 850/245-2242
Docket for Case No: 07-002763
Issue Date |
Proceedings |
Oct. 24, 2007 |
Final Order filed.
|
Aug. 03, 2007 |
Petitioner`s Response to Order to Show Cause filed.
|
Aug. 02, 2007 |
Recommeded Order of Dismissal. CASE CLOSED.
|
Jul. 25, 2007 |
Petitioner`s Response to Department of Correction`s and Department of Environmental Protection`s Joint Response to Order to Show Cause filed.
|
Jul. 23, 2007 |
Letter to Judge Johnston from J. Rogers regarding a written notice that party will contest to the response to order filed.
|
Jul. 23, 2007 |
Undeliverable envelope returned from the Post Office.
|
Jul. 13, 2007 |
Department of Environmental Protection`s and Department of Corrections` Joint Response to Order to Show Cause filed.
|
Jul. 10, 2007 |
Order to Show Cause.
|
Jul. 03, 2007 |
Notice of Appearance (filed by A. Miller).
|
Jun. 28, 2007 |
Response to Initial Order filed.
|
Jun. 27, 2007 |
State of Florida Department of Environment Protection and State of Florida Department of Corrections Joint Response to Inital Order filed.
|
Jun. 20, 2007 |
Notice of Supplemental Exhibits filed.
|
Jun. 20, 2007 |
Order Dismissing Petition and Amended Petition with Leave to Amend filed.
|
Jun. 20, 2007 |
Express and Specific Demand for Performance filed.
|
Jun. 20, 2007 |
Notice filed.
|
Jun. 20, 2007 |
Amended Petition for Administrative Hearing filed.
|
Jun. 20, 2007 |
Petition for Administrative Hearing filed.
|
Jun. 20, 2007 |
Consent Order filed.
|
Jun. 20, 2007 |
Second Amended Petition for Administrative Hearing filed.
|
Jun. 20, 2007 |
Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
|
Jun. 20, 2007 |
Initial Order.
|