STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COUNTY LINE COALITION, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4103

) MAD HATTER UTILITY, INC., and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Based upon the Motion to Dismiss, the Motion to Strike and Responses hereto, along with the filed memorandums and arguments of counsel and the duly qualified representative, the undersigned finds:

1 On February 4, 1991, the Department of Environmental Regulation issued a Notice Of Intent To Issue Permit No. DC51-181550.

1. Pursuant to Rule 17-103.150(3), Florida Administrative Code, the Department's proposed agency action was published by Mad Hatter Utility, Inc., in The Tampa Tribune on February 16, 1991. This public notice strictly complied with the information requirements set forth in the aforementioned rule.

   
   

2. The Petitioners in these consolidated cases did not receive actual notice of the Department's intent to issue until after the 21 day point of entry period allowed by Rule 17-103.150(3)(d), Florida Administrative Code, had passed.

   
   

3. Rule 17-103.150(3)(d), Florida Administrative Code, enlarges the time period of 14 days set forth in Section 403.815, Florida Statutes, which governs the time period allowed for a petition for an administrative hearing to be filed by persons whose substantial interests are affected by the proposed agency action.

   
   

4. Failure to file a petition within the 21 days following the published public notice constitutes a waiver of any right to a hearing under Section 120.57, Florida Statutes.

   
   

5. Inherent in the original Notice Of Intent To Issue is the requirement that Mad Hatter Utility, Inc., comply with Rules 17-610.417 and 17-610.421(3), Florida Administrative Code, because the Notice Of Intent requires the applicant to comply with the Department's rules regarding the operation and maintenance of the system under General Permit Condition No. 6. As a result, the Modification Of Conditions Permit No. DC51- 181550 issued by the Department on June 3, 1991, has been misnamed. The document merely recites the contents of Rules 17-

610.417 and 17-610.421(3), Florida Administrative Code, which were always part of the permit conditions. This document is not a "modification," it's a

"redundancy." At no time was the applicant exempt from these specific rule requirements. See Rule 17-103.160, Florida Administrative Code.

Accordingly, it is RECOMMENDED:

1. The request for an administrative hearing as to Permit No. DC51-181550 be dismissed as the right to a hearing under Section 120.57, Florida Statutes, has been waived according to Rule 17-103.150(3)(d), Florida Administrative Code.

   
   

2. The request for an administrative hearing as to the two specific conditions set forth in the permit modification designated as Permit No. DC51- 181550A be dismissed because these two specific conditions were already required in the original permit under the general conditions. While specifically setting forth these permit conditions for an applicant may be prudent, it is also redundant. The Petitioners in Case Nos. 91-4103 and 91-4104 do not get a second point of entry to request a hearing under Section 120.57, Florida Statutes, because of the Department's misuse of the term "permit modifications." Such a result would deny the applicant the rights and interests acquired through the original permitting process.

DONE and ENTERED this 13th day of November, 1991, in Tallahassee, Florida.

VERONICA E. DONNELLY

Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991.

COPIES FURNISHED:

ROBERT S WISE ESQ 3418 HANDY RD STE 204

TAMPA FL 33618

DIANE D TREMOR ESQ

ROSE SUNDSTROM & BENTLEY 2548 BLAIRSTONE PINES DR TALLAHASSEE FL 32301

W DOUGLAS BEASON ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REG 2600 BLAIRSTONE RD

TALLAHASSEE FL 32399

JAMES KAUCHICK

LAKE KELL PROPERTY OWNERS ASSN PO BOX 1666

LUTZ FL 33549

Docket for Case No: 91-004103

Orders for Case No: 91-004103