STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAPLAN INDUSTRIES, INC., )

a Florida corporation, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1725

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and PROPERTY ) APPRAISER, POLK COUNTY, FLORIDA. )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on November 15, 1976 at Bartow, Florida.

APPEARANCES

For Petitioner Monte J. Tillis, Jr., Esquire Kaplan Post Office Box 37 Industries, Inc. Bartow, Florida 33830

For Respondents Ross McVoy, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation: 2562 Executive Center Circle East

Montgomery Building Tallahassee, Florida 32304

Office of Property E. Snow Martin, Esquire Appraiser Polk 400 Florida Federal Building County, Florida Lakeland, Florida

By petition filed September 2, 1976, Kaplan Industries, Inc., Petitioner (Kaplan or Petitioner) seeks an administrative hearing on Department of Environmental Regulation's (DER) denial of Petitioner's claim that the metal roofs aver cattle feeding lots constitute pollution control equipment for tax assessment purposes in accordance with Section 193.621 F.S. Two witnesses were called by Petitioner, one witness was called by Respondent, DER, and 8 exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner operates a cattle feeding lot near Bartow, Florida consisting of 6 sheds, 1600 feet long by approximately 25 feet wide. These sheds are two story structures with the cattle fed on the upper story. The upper floor is slotted to permit cattle droppings to fall to the lower level.

   From there the manure and urine is processed in the waste treatment facilities consisting of a concrete sump and anerobic ponds. These treatment facilities qualify as pollution control equipment for purposes of tax assessment.

   
   

2. Petitioner installed metal roofs over these feeding sheds which Petitioner claims also constitute pollution control equipment.

   
   

3. Shade for cattle is required and could be provided by a fibre screen which would cost some $37,000 as compared to the metal roof costs of approximately $171,000. The difference between the costs of the metal roof and a fabric sun screen is $133,882.06 which Petitioner desires to have reduced from its assessment for tax purposes. The Property Appraiser Polk County recommended to the DER that this amount be approved as a deduction for pollution control equipment.

   
   

4. Petitioner contends that the primary purpose of the metal roof is to divert the rainwater from mixing with the cattle droppings. As constructed rainwater is presently collected from the roofs of the feeding lots and transported via viaduct to a runoff pond required by federal EPA regulations which acts as a settling pond. From this pond, which EPA regulations requires have a ten-year storm rainfall capacity, the water is pumped for irrigation purposes.

   
   

5. If the rainwater is allowed to fall onto the upper platform on which the cattle are kept, it will go through the slots and mix with the fecal matter on the ground floor. If this were allowed to occur it would be necessary for Petitioner to greatly increase the size of its sump and anerobic ponds to treat this waste thus increasing the cost of this portion of its plant which is clearly pollution control equipment as defined by Section 193.621 F.S.

   
   

6. As presently operated the solids are removed from the droppings in the sump before the remaining liquid is processed in the waste treatment facilities consisting of the anerobic ponds.

   
   

7. The efficiency of the anerobic process is increased as the concentration of the waste material is increased. Adding rainwater to this waste material would therefore decrease the efficiency of the operation as well as require a larger capacity sump and anerobic ponds.

   
   

8. In addition to keeping rainwater out of the cattle droppings, the roof provides needed shade to the cattle, provides better shelter for cattle in rainy or cold weather, and eliminates need for adding covers over the feeding troughs. Cattle fed in open lots are as healthy, or healthier, than those fed in covered feeding lots.

   
   

   CONCLUSIONS OF LAW

9. Section 193.621 F.S. provides in pertinent part: "If it becomes necessary for any person,

   firm, or corporation owning or operating a manufacturing or industrial plant or installation to construct or install a facility, as hereinafter defined, in order to eliminate or reduce industrial air or water pollution, any such facility or facilities shall be deemed-to have value for purposes of

   assessment for ad valorem property taxes no greater than its market value as salvage.

   Any facility as herein defined heretofore constructed shall be assessed in accordance with this section.

   * * *

   (4) The term 'facility' or 'facilities' as used in this section shall be deemed to include any device, fixture, equipment, or machinery used primarily for the control or abatement of pollution or contaminants from manufacturing or industrial plants or installations "

   
   

   In providing guidelines to county property appraisers in carrying out the provisions of the statute above quoted, DER in Chapter 17-8 F.A.C. defined certain terms. Rule 17-8.02 F.A.C. provides that in construing this chapter, the words, phrases, or terms shall have the following meaning:

   
   

   "(a) 'used primarily' - that the use of a facility in the control or abatement of pollution or contaminates which outweighs its use for any other purpose."

   
   

10. Here the installation of metal roofs served to deflect rainwater and prevent it from becoming contaminated with the cattle droppings. It therefore served the purpose of reducing the quantity of industrial pollution generated by the cattle feeding lot. Obviously the roof thereby controlled and abated the pollution that would otherwise have occurred.

    
    

11. The only question remaining is whether the solid roof was used primarily for pollution control purposes as opposed to acting as a shade for the cattle, providing greater protection from the elements, etc. in determining this question the definition provided in Rule 17-8.02(a) F.S. above quoted is applicable. This leaves the determination of the assessment of this property for tax purposes to be determined by whether or not the use of the solid roof for pollution control outweighs its use for any other purpose. The evidence submitted clearly supports the conclusion that the use of the solid roof for pollution control outweighs its use for protection of the cattle from the elements. No other use for the roof was presented. It is therefore,

RECOMMENDED that the petition be granted and that Kaplan Industries, Inc. receive relief in its assessment for `property taxes in the amount of

$133,882.06.

DONE and ENTERED this 14th day of December, 1976, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

COPIES FURNISHED:

Ross A. McVoy, Esquire Assistant General Counsel Department of Environmental Regulation

2562 Executive Center Circle East Montgomery Building

Tallahassee, Florida 32301

Monte J. Tillis, Jr., Esquire

P. O. Box 37

Bartow, Florida 33830

E. Snow Martin, Esquire

400 Florida Federal Building Lakeland, Florida

Docket for Case No: 76-001725

Orders for Case No: 76-001725