STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. G. FONTE, JR., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 92-0133

   ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a final hearing in the above-styled matter was held on September 29, 1992, in Orlando, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

   
   

   APPEARANCES

   
   

   For Petitioner: Carole Joy Barice

   Fowler, Barice and Feeney, P.A.

   28 West Central Boulevard Orlando, Florida 32801

   
   

   For Respondent: W. Douglas Beason

   Assistant General Counsel

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

   The central issue in this case is whether Petitioner is entitled to a waste tire closure permit.

   
   

   PRELIMINARY STATEMENT

   
   

   This case began on June 11, 1991, when the Department of Environmental Regulation (Department) issued a notice of permit denial to the Petitioner, I.G. Fonte, Jr. The Petitioner had filed an application for a permit to close a waste tire site which is located in Orlando, Florida. The denial of the request was based upon the following grounds: first, that the applicant had been notified that his application was incomplete and failed to submit the required additional information within a reasonable period of time; and, second, that the Department is no longer authorized to issue permits for closure of waste tire sites.

   
   

   The Petitioner filed a petition for administrative proceeding that alleged, in part, that the Department currently issues permits or approvals which are

   functionally similar to the closure permit sought by Petitioner. Further, the Petitioner claimed that he was entitled to such a permit by default since the Department had failed to timely act on his original permit request.

   
   

   The case was forwarded to the Division of Administrative Hearings for formal proceedings on January 7, 1992. The parties' prehearing statement was filed on May 4, 1992.

   
   

   At the hearing, the Petitioner testified in his own behalf and offered the testimony of Elizabeth Williams, the administrative secretary for the waste program administrator and for solid waste. Petitioner's exhibits numbered 1 through 12 were admitted by stipulation of the parties. Petitioner's exhibits 15, 19, and 20 were also admitted. Petitioner's exhibits numbered 13 and 14 were proffered for the record and Petitioner was granted leave to file written argument regarding their admissibility. Such exhibits have not been received.

   
   

   Richard Tedder, program manager for the Department's solid waste district office in Orlando, testified on behalf of Respondent. The Department's exhibits numbered 1 through 4 were admitted into evidence. A transcript of the proceedings was filed with the Division of Administrative Hearings on October 15, 1992.

   
   

   After the hearing, the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

   
   

   FINDINGS OF FACT

   
   

   Based upon the prehearing statement, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made:

   
   

   1. The Petitioner is the owner and operator of a waste tire site located at 17421 East Colonial Drive in Orlando, Florida.

      
      

   2. On or about March 28, 1989, the petitioner filed a "Waste Tire Notification" with the Department's Central District Office in Orlando, Florida. The notification form identified the site name as "I. G. Fonte, Jr. Import Used Auto Part's."

      
      

   3. At that time, owners or operators of any waste tire sites were required, by law, to provide the Department with certain information related to the waste tire site's size, location, and the quantity of waste tires located on the site.

      
      

   4. The Waste Tire Notification form filed by the Petitioner indicated that approximately 1,000,000 waste tires were located on the Petitioner's waste tire site. The exact number of waste tires at the site is unknown. Petitioner estimated 400,000 tires were on the site at the time of the hearing.

      
      

   5. On July 17, 1989, the Petitioner filed a "Waste Tire Closure Permit Application" with the Department's Central District Office in Orlando, Florida.

      
      

   6. The Petitioner's application for a Waste Tire Closure Permit was filed on DER Form No. 17-711.900(7), which was the appropriate form for the requested permit.

   7. The Petitioner's application for a Waste Tire Closure Permit indicated the mailing address for the permit applicant was as stated in paragraph 1. The permit also indicated the and name and address of Petitioner's attorney.

      
      

   8. Among the items of information requested by the application, Petitioner was required to submit a description of how the following tasks required for the closure of the waste tire site would be accomplished together with a time schedule for their completion: removal of all waste tires, processed tires and residuals from the site; removal of any solid waste to a permitted solid waste management facility (indicate the facility where disposal will take place); and site rehabilitation.

      
      

   9. Further, the application required the Petitioner to submit proof of financial responsibility pursuant to Rule 17-711.510(c), F.A.C.

      
      

   10. On August 8, 1989, the Department requested that the Petitioner provide additional information in order to complete the permit application. Specifically, the Department requested that the Petitioner submit proof of financial responsibility.

       
       

   11. The foregoing request for additional information was mailed to the Petitioner at the address noted above.

       
       

   12. On August 29, 1989, the Department received the Petitioner's response to the Department's request for additional information.

       
       

   13. By correspondence dated August 30, 1989, the Department once again requested that the Petitioner submit the information required by the permit application form.

       
       

   14. This second request for information, dated August 30, 1989, was again mailed to Petitioner's address noted above.

       
       

   15. The notice dated August 30, 1989, was not returned to the Department.

       
       

   16. The Department utilizes a computer system for the purpose of tracking permit applications. The computer system is referred to by the acronym "PATS" which stands for "Permit Application Tracking System".

       
       

   17. The "PATS" sheet for the Petitioner's permit application reflects that on August 30, 1989, the Department mailed a second letter to the Petitioner requesting that the Petitioner submit additional information. The Petitioner did not respond to the August 30, 1989, request for additional information.

       
       

   18. By correspondence dated April 9, 1991, the Department notified the Petitioner that:

       
       

       Due to rule changes, the department no longer requires closure permits prior to closure.

       Rather, current rules require an approved Closure Plan for the Facility,

       Rule 17-711.700(3), F.A.C., which is to be executed when closure is desired.

       
       

   19. The Department's correspondence dated April 9, 1991, was mailed to Petitioner at the address noted above.

   20. There is no dispute that the Petitioner received the correspondence dated April 9, 1991.

       
       

   21. On June 12, 1991, the Department issued a Notice of Intent to Deny with regard to the Petitioner's permit application.

       
       

   22. The Petitioner has not filed with the Department an application for a "Waste Tire Processing Facility" permit.

       
       

   23. At the time the Petitioner filed the permit application, the Petitioner was aware that the permit, if issued, would have required the site to have been closed by July 1, 1990.

       
       

   24. At the time the Petitioner filed the permit application the Petitioner did not have the financial resources to close the site by July 1, 1990.

       
       

   25. The Petitioner does not have the financial resources necessary to close the site.

       
       

   26. The Petitioner's waste tire site is not an integral part of a waste tire processing facility.

       
       

   27. The Petitioner's waste tire site is not used for the storage of waste tires prior to processing.

       
       

   28. The Petitioner's waste tire site is not a permitted solid waste management facility nor would it qualify for a permit for same.

       
       

       CONCLUSIONS OF LAW

       
       

   29. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

       
       

   30. In 1989, Section 403.717(3), Florida Statutes, provided, in part:

       
       

       (3) On or after July 1, 1989:

       1. A person may not maintain a waste tire site unless such site is an integral part of the person's permitted waste tire processing facility.

          
          

   31. The foregoing section was amended to provide [Section 403.717, Florida Statutes (1992)]:

       
       

       (3)(a) A person may not maintain a waste tire site unless such site is:

       1. An integral part of the person's permitted waste tire processing facility; or

       2. Used for the storage of waste tires prior to processing and is located at a permitted solid waste management facility.

          
          

   32. Petitioner's application for a waste tire closure permit was filed pursuant to Chapter 17-711, Florida Administrative Code. Rule 17-711.300, Florida Administrative Code, provided, in part:

       (5) By July 1, 1989, any waste tire sites which are not an integral part of a waste tire processing facility or which do not meet the requirements of Rule 17-711.510(4), F.A.C. shall have closed in compliance with Rule

       17-711.700, F.A.C., or shall have received a closure permit from the Department pursuant to Rule 17-711.700(4), F.A.C.

       
       

   33. Rule 17-711.700, Florida Administrative Code, provided, in pertinent part:

       
       

       (5) The owner or operator of an existing waste tire site who desires to close the site but is incapable of doing so by July 1, 1989, shall apply for a closure permit from the Department to close the site, * * *and shall meet the following requirements:

       * * *

       1. The owner or operator of the site has contracted with a waste tire processor or collector to complete the following by July 1, 1990:

          1. Process all waste tires on the site and remove them for disposal or recycling;

          2. Process all waste tires on the site and obtain a solid waste management facility permit for disposal or recycling on the site; or

          3. Transport all waste tires on the site to a permitted processing facility for processing and disposal or recycling.

       2. A closure plan is submitted to the Department for approval which meets the requirements of subsection (3) above, and which assures that the site will be closed by July 1, 1990.

       
       

   34. Section 120.60, Florida Administrative Code, provides, in pertinent part:

       
       

       (2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. * * * Every application for license shall be approved or denied within

       90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law.

   35. Section 403.0876(2)(a), Florida Statutes, provides, in part:

       
       

       A permit shall be approved or denied within 90 days after receipt of the original application, the last item of timely requested material, or the permit applicant's written request to begin processing the permit application.

       
       

   36. In this case, the Department failed to timely act to deny the Petitioner's permit application. While the Department did seek additional information from the Petitioner, when a response did not come within a reasonable time (arguably 30 days), the Department should have summarily denied the application. If a permit issued by default, the benefits or rights conveyed by that permit could not exceed those allowed by law.

       
       

   37. Therefore, the Petitioner was required to complete the activities contemplated by a permit within the time lines prescribed by law. That is, have the site restored and closed by July 1, 1990. Of course, then, as now, the Petitioner lacked the financial ability to remove the waste tires from the site.

       
       

   38. Since there is now no functionally equivalent permit the Department could issue to accomplish the original goal of the permit Petitioner sought, the matter has been rendered moot. This forum does not have jurisdiction to create a remedy for Petitioner's waste tire problem. Moreover, Petitioner has not sought a permit for any facility which could be permitted for the site (if there were an available permit).

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order dismissing Petitioner's petition in this cause and denying the application for a "functionally equivalent permit."

DONE and ENTERED this 14th day of January, 1993, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 14th day of January, 1993.

APPENDIX TO CASE NO. 92-0133

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraphs 1, 2, 4, 6, 9, 10, 16, 17, 19, 21, 27, and 28 are accepted.

2. Paragraphs 3, 5, 7, 8, 11, 12, 13, 14, 15, 18, 20, 22, 23, 24, 25, and

26 are rejected as irrelevant, hearsay, contrary to the weight of the evidence, or argumentative.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT:

1. Paragraphs 1 through 30 are accepted.

COPIES FURNISHED:

Carole Joy Barice, Esquire

28 West Central Boulevard Orlando, FL 32801

W. Douglas Beason, Esquire

Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Carol Browner, Secretary

Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

I. G. FONTE, JR., Petitioner,

vs. CASE NO. 91-1399

DOAH Case NO. 92-0133

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On January 14, 1993, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order to the Department of Environmental Regulation ("Department") and to Petitioner, I.G. Fonte, Jr. ("Fonte"). A copy of the Recommended Order is attached as Exhibit A. On January 29, 1993, Fonte filed exceptions to the Recommended Order. The Department also filed exceptions on January 29. On February 8, the Department filed responses to Fonte's exceptions. The matter thereupon came before me as Secretary of the Department for final agency action.

BACKGROUND

Fonte is owner and operator of a waste tire site located in Orlando, Florida. As part of the Solid Waste Act of 1988, the Florida Legislature provided that on or after July 1, 1989, waste tire sites could no longer be maintained unless they were an integral part of a permitted waste tire processing facility. 1/ By rule effective February 19, 1989, the Department provided that waste tire sites which are not an integral part of a waste tire processing facility or a permitted solid waste management facility must have completed closure of the site in accordance with applicable Department rules set forth in Rule 17-711.700, Florida Administrative Code (F.A.C.), or must have received a closure permit from the Department pursuant to Rule 17-711.700(5),

F.A.C. 2/ The effect of the closure permit was to provide an extension of the closure deadline until July 1, 1990, for owners or operators of existing waste tire sites who desired to close their sites but were incapable of doing so by July 1, 1989, provided certain conditions were met as set forth in the rule. 3/

Fonte submitted an application for a Waste Tire Closure Permit to the Department on July 17, 1989, for his Orlando site. On August 8, 1989, the Department requested that Fonte submit additional information in order to complete the application, including proof of financial responsibility as required by applicable Department rules. Fonte provided a response to this request on August 29, 1989. On August 30, 1989, the Department prepared a letter to Fonte indicating that additional information was still required to

complete the application, including the information relating to proof of financial responsibility. 4/ Among the issues for determination by the Hearing Officer were whether the August 30, 1989 letter was mailed to and received by Fonte. In any event, no further completeness information was provided by Fonte.

Effective November 7, 1990, the Department's rule providing for the waste tire closure permit was repealed. 5/ By correspondence dated April 9, 1991, Fonte was notified of this fact and offered a refund of his permit application fee of $250.00. 6/

On June 11, 1991, the Department issued a notice of permit denial which was based upon two grounds: First, that Fonte had been notified that his application was incomplete and had failed to submit the required additional information within a reasonable period of time; and second, that the Department was no longer authorized to issue permits for closure of waste tire sites. 7/ Fonte thereupon filed a petition for administrative hearing challenging the notice of permit denial and asserting that he was entitled to a default permit or a "functionally equivalent permit or approval" pursuant to Sections 120.60(2) and 403.0876, Florida Statutes, because the Department did not act on his permit application within the time required by law.

The matter was then referred to the Division of Administrative Hearings for assignment of a Hearing Officer, who conducted an evidentiary hearing on September 29, 1992. Relevant findings and conclusions of the Hearing Officer were that the August 30, 1989 request for additional information was mailed by the Department to Fonte at his correct address, that he did not respond to that request, that the Department should have summarily denied his application when his response did not come within a reasonable time, but that in any event, the matter is now moot because any permit or functional equivalent thereof would have required the site to be restored and closed by July 1, 1990, and that Fonte then, as now, lacked the financial ability to remove the waste tires from the site. Accordingly, the Hearing Officer recommended that the Department enter a Final Order dismissing Fonte's petition and denying his application for a permit.

RULING ON REQUEST FOR ORAL ARGUMENT

Fonte has requested oral argument before the Secretary of the Department. Rule 17-103.200(3), F.A.C., provides that the Secretary, in her discretion, may grant oral argument. I decline to do so. All parties have had an opportunity to file written exceptions and responses to exceptions in this matter. Based upon my review of this case, I conclude that oral argument is not necessary to clarify the issues. Accordingly, the request for oral argument is denied.

RULINGS ON EXCEPTIONS

Fonte has filed fourteen exceptions to various aspects of the Hearing Officer's rulings on the evidence and the parties' proposed findings of fact, as well as to conclusions of law recommended by the Hearing Officer. The Department has filed a single exception directed to one of the Hearing Officer's recommended conclusions of law. Before proceeding to rule specifically on each exception, I should note the constraints imposed by law on agencies in reviewing findings of fact made by a Hearing Officer. Under Section 120.57(1)(b)10., Florida Statutes, the agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order, but may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that such findings were not based upon

competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, as these are matters within the sole province of the Hearing Officer. Accordingly, if the record discloses any competent substantial evidence to support a finding of fact made by the Hearing Officer, I am bound by such finding. See, e.g., Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987)

EXCEPTIONS OF THE DEPARTMENT OF ENVIRONMENTAL REGULATION

The Department takes exception to the Hearing Officer's conclusion of law, set forth in Paragraph 36 of the Recommended Order, that the Department failed to timely act to deny Fonte's permit application. This conclusion is grounded on the following conclusion of law set forth in the same paragraph:

While the Department did seek additional in- formation from the Petitioner, when a re- sponse did not come within a reasonable time (arguably 30 days), the Department should have summarily denied the application.

(Recommended Order at 8-9)

The Department argues that "[t]his finding should not be construed to be a finding that, as a matter of law, a default permit should have been issued."

The Department notes that the Hearing Officer does not make any type of ultimate finding that the Department failed to timely act on the permit application as contemplated by Sections 120.60 and 403.0876, Florida Statutes. The Department goes on to assert that the Hearing Officer appears to be making a suggestion that, as a matter of policy, the Department should summarily deny a permit application when an applicant fails to supply additional information within 30 days of the Department's request. The Department points out that no law is cited by the Hearing Officer to support such a construction of the controlling statutes.

While the Hearing Officer clearly felt that the Department waited too long to deny Fonte's permit application, I do not read her Recommended Order as concluding, as a matter of law, that a default permit should issue under such circumstances. Rather, her use of the subjunctive in this context indicates that she was simply illustrating that the matter has been rendered moot because there is no permit, whether issued by default or by ordinary processes, that could accomplish the goal of extending the time for closure of Fonte's waste tire site to July 1, 1990:

If a permit issued by default, the benefits or rights conveyed by that permit could not exceed those allowed by law. Since

there is now no functionally equivalent permit the Department could issue to accomplish the original goal of the permit Petitioner sought, the matter has been rendered moot.

(Recommended Order at 9, emphasis supplied)

Nevertheless, I agree with the Department's exception to the extent the Recommended Order could be read as recommending, as a matter of law, that an

agency's failure to summarily deny a permit application where an applicant fails to submit necessary information to complete the application within 30 days of being requested to do so subjects the agency to the default provisions of Sections 120.60(2) and 403.0876, Florida Statutes. No such requirement appears in these statutes, nor has any case law or other precedent been cited to support such an interpretation. The only relevant requirement imposed on the agency by these statutes is to examine the application within 30 days after receipt thereof and request from the applicant any additional information needed to make the application complete. Notifying the applicant of errors, omissions, or the need for additional information is a statutory prerequisite for denying the permit for failure to complete the application, but there is no statutory requirement that the agency deny an incomplete application for a permit within any specific time frame, and there is certainly no provision for a default if the agency fails to do so. Indeed, both statutes make clear that the 90-day period within which a permit must be approved or denied does not even begin to run until the agency receives the timely requested additional information.

For these reasons, I accept the Department's exception and reject the Hearing Officer's recommended conclusions of law to the extent they conclude that an agency must summarily deny a permit application, under penalty of default, if timely requested completeness information is not received by a date certain.

EXCEPTIONS OF I.G. FONTE, JR.

Exception No. 1

In his first exception, Fonte argues that the Hearing Officer erred in the preliminary statement of the Recommended Order in the manner in which she described his request for formal hearing. The Hearing Officer described Fonte's request as being for the purpose of obtaining a permit or approval which is functionally similar to the closure permit he applied for. Fonte argues that the Hearing Officer should also have stated that Fonte's primary purpose was to obtain a waste tire closure permit pursuant to the default provisions of Sections 120.60 and 403.0876(2), Florida Statutes.

I find no error in the manner in which the Hearing Officer described the issues presented in this proceeding. Her initial statement of the issues recites that "[t]he central issue in this case is whether Petitioner is entitled to a waste tire closure permit." (Recommended Order at 1) Furthermore, the Recommended Order, when read as whole, makes clear that the Hearing Officer took into consideration not only the question of whether Fonte was entitled to a default permit under Rule 17-711.700(5), F.A.C. (eff. 2-19-89), but also whether Fonte might be entitled to any "functionally equivalent permit" that could accomplish the original goal of extending until July 1, 1990, the time for closing Fonte's waste tire site and removing all waste tires from the site.

Finally, even if the Hearing Officer did err by failing to elucidate such distinction, if any, in her preliminary statement, the error would be harmless. For these reasons, Fonte's first exception is rejected.

Exception No. 2

In his second exception, Fonte argues that the Hearing Officer erred by not receiving Fonte's exhibits No. 13 and 14 into evidence. Fonte argues that "these exhibits were relevant and material to the subject matter and issues in this case and should have been admitted."

The exhibits in question consist of copies of answers to interrogatories and materials produced by the Department in response to requests for production served during the discovery phase of this case. They relate to other facilities and waste tire sites, generally addressing such matters as the types of notification those facilities and sites provided to the Department regarding waste tires and the manner in which closure or other disposition of such facilities and sites was handled. Also included are copies of other types of permits issued by the Department to other facilities, primarily permits for construction and operation of new or existing waste tire processing facilities, and permits for storage and processing of waste tires at permitted solid waste facilities. I note that the Hearing Officer provided Fonte the opportunity to submit written posthearing argument in support of the admission of this material, and that Fonte did submit such argument on October 8, 1992.

I find no departure from the essential requirements of law or abuse of discretion on the part of the Hearing Officer in denying the admissibility of these proffered exhibits. They are manifestly irrelevant to the issue of whether Fonte is entitled to a default permit under the circumstances presented by this case, and at best could bear only marginal and remote relevance to the issue of whether any "functionally equivalent" approved methods of disposing of Fonte's waste tires or of allowing them to remain on site exist. Even the latter possibility is negated by the Hearing Officer's unchallenged findings of fact, set forth in paragraphs 24-28 of the Recommended Order, to the effect that Fonte has not at any material time had the financial resources necessary to close the site, that the site is not an integral part of a waste tire processing facility, that the site is not used for the storage of waste tires prior to processing, and that the site is not a permitted solid waste management facility, nor would it qualify for a permit for same. For these reasons, Fonte's second exception is rejected.

Exception No. 3

In his third exception, Fonte points out that the estimate of 400,000 tires on site, attributed to his testimony by the Hearing Officer, was actually part of the testimony of Richard Tedder, manager for the solid waste program of the Department's Central District Office. This exception is accepted to the extent that, in the third sentence of Paragraph 4 of the Hearing Officer's findings of fact, the words "the Department" are substituted for the word "Petitioner." Any error in this regard is harmless.

Exceptions No. 4, 5, 8, and 9

In these exceptions, Fonte argues that the Hearing Officer erred in finding that the Department mailed its August 30, 1989, request for completeness information to him, in accepting the Department's proposed findings of fact to this effect, and in rejecting Fonte's proposed findings of fact to the effect that the August 30, 1989, notice was not mailed to him and the information contained therein was not provided to him verbally during subsequent conversations with Department representatives. In exception No. 8, Fonte also argues that the Hearing Officer erred by rejecting his proposed finding of fact No. 15, which provided as follows:

15. The applicant testified that he never received the second request for information dated August 10, 1989.

The record discloses competent substantial evidence to support the Hearing Officer's finding that the August 30, 1989, request for completeness information was mailed to Fonte at his correct address. The Department's witness, Elizabeth Williams, testified that she typed the letter and that entries made in the Department's files in her handwriting indicate that she mailed it. (Transcript at 82-83, 86-87, 94) Likewise, I find no abuse of discretion on the part of the Hearing Officer in rejecting the characterization of Fonte's testimony contained in his proposed finding of fact No. 15. A review of his testimony at hearing shows that he testified that he did not recall whether or not he received the August 30, 1989 letter, but his practice would have been to respond to it and to send a copy to his attorney if he had received it. (Transcript at 46-47)

The issues raised by these exceptions clearly relate to the weight to be attributed to the evidence and testimony by the Hearing Officer--matters which, as already noted, are vested in her sound discretion by law. Since the record providers competent substantial evidentiary support for the Hearing Officer's findings, I am without liberty to disturb those findings. In addition, I find no abuse of discretion by the Hearing Officer in rejecting Fonte's proposed findings that the August 30, 1989 letter was not sent by certified mail and that Fonte was not advised of the incompleteness of his application in subsequent conversations with Department representatives. Such findings were irrelevant to the issues of whether the Department had complied with the requirements of Sections 120.69(2) and 403.0876, Florida Statutes, and whether Fonte is entitled to a default permit. For these reasons, Fonte's exceptions 4, 5, 8, and 9 are rejected.

Exceptions No. 6, 7, 10, 11, and 12

In these exceptions, Fonte takes issue with the Hearing Officer's rejection of Fonte's proposed findings of fact No. 7, 8, 23, 24, 25, and 26. All of these proposed findings deal with the factual background of abatement activities undertaken by the Department pursuant to Rule 17-711.321, F.A.C., and were rejected by the Hearing Officer as irrelevant, hearsay, contrary to the weight of the evidence, or argumentative. (Recommended Order at 10)

Rule 17-711.321, F.A.C., implements Section 403.709(2)(c), Florida Statutes, which authorizes the Department to utilize a portion of moneys from the Solid Waste Management Trust Fund for removal of tires from illegal waste tire sites according to priorities established by law or Department rule.

Actions undertaken by the Department in implementing this legislative mandate by appropriate rulemaking, by investigating and prioritizing sites targeted for state-funded cleanup, and by actually undertaking and accomplishing cleanup of particular sites, are clearly independent from the Department's permitting and enforcement powers. Indeed, the legislature's use of the term "illegal" implies that the waste tires are not at the site pursuant to any valid Department permit or exemption from permitting requirements. Therefore, Fonte's proposed findings dealing with the particulars of Department actions undertaken in connection with Rule 17-711.321, F.A.C., are irrelevant to any issues presented in this proceeding and specifically to the issue of whether Fonte is entitled to a default permit for closure of the site by July 1, 1990. Accordingly, I find no departure from the essential requirements of law on the part of the Hearing Officer in rejecting these findings.

In exception No. 12, Fonte also asserts that the Hearing Officer erred by concluding that Fonte was required to have the site restored and closed by July 1, 1990. Fonte apparently argues that because he was and is financially

incapable of closing the site, he should be relieved of any requirement for closing the site by a date certain.

As previously noted, the effect of the closure permit under Rule 17- 711.700(5), F.A.C. (eff. 2-19-89), was to provide a one-year extension of the statutory deadline for cleanup and closure of waste tire sites for those owners or operators who were incapable of closing their sites by July 1, 1989, but could (among other requirements) demonstrate proof of sufficient financial responsibility to assure that their sites would be closed by July 1, 1990. This extension of the statutory deadline was not merely a specific condition that was imposed on some permits and not on others, but was the essence of the closure permit itself. I find Fonte's argument in this regard to be without merit; furthermore, it is moot in view of my ruling that Fonte has not demonstrated entitlement to a default permit in the first place.

For the reasons set forth above, Fonte's exceptions No. 6, 7, 10, 11, and

12 are rejected.

Exceptions No. 13 and 15

In exceptions 13 and 15, Fonte takes issue with the Hearing Officer's conclusion that this matter is moot because there is no functionally equivalent permit that the Department could issue to accomplish the original goal of the permit Fonte sought, i.e., to have the site restored and closed by July 1, 1990. Fonte specifically agrees with the Hearing Officer's conclusion that, if a permit issued by default, the benefits or rights conveyed by that permit could not exceed those allowed by law. However, Fonte again attempts to argue that a permit containing no date by which closure would be required (or, presumably, some unspecified date later than July 1, 1990) would not convey rights or benefits exceeding those allowed by Rule 17-711.700(5), F.A.C. (eff. 2-19-89).

This argument is rejected for the reasons set forth in my rulings on Fonte's exceptions No. 6, 7, 10, 11 and 12.

The remainder of Fonte's argument under exception No. 15, entitled "The Real World Conditions at the Subject Waste Tire Site," consists of off-record factual assertions by Fonte's attorney to the effect that, as a result of the Department's abatement actions conducted under Rule 17-711.321, F.A.C.,

[t]he tires are gone. The site is closed. DER hired a contractor and undertook the necessary remedial work, just as its rules would have functioned in 1989.

(Fonte's Exceptions at 15) Even if I could consider the off-record assertions of Fonte's attorneys, the subject matter thereof is irrelevant, for reasons set forth in my rulings on Fonte's exceptions No. 6, 7, 10, 11, and 12, to the issue of whether Fonte is entitled to a default permit. These assertions do, however, further underscore the fact that no meaningful results would be produced in this case if the novel theories proposed by Fonte were accepted.

For the foregoing reasons, Fonte's exceptions No. 13 and 15 are rejected.

Exception No. 14

In his fourteenth exception, Fonte notes that his proposed findings of fact No. 16, 17 and 19 were accepted by the Hearing Officer as reflected by the

Appendix to the Recommended Order, (Recommended Order at 10) but that the text of these findings was not incorporated in the body of the Recommended Order.

The findings in question relate to the issue of whether the August 30, 1989, request for completeness information was mailed to and received by Fonte, or the need for such information otherwise communicated to him. These findings are subordinate to findings made by the Hearing Officer in the text of the Recommended Order. Furthermore, Section 120.59(2), Florida Statutes, only requires that a recommended order include a ruling on each proposed finding of fact submitted by a party. The Hearing Officer has complied with this statutory requirement, and the rationale for her rulings and recommendations is readily ascertainable from the text of her Recommended Order. Accordingly, Fonte's exception No. 14 is rejected.

Having ruled on all the exceptions, it is ORDERED THAT:

1. The Recommended Order of the Hearing Officer is adopted as modified herein and is incorporated herein by reference.

   
   

2. The petition filed by I.G. Fonte, Jr., is DISMISSED.

   
   

3. The application of Petitioner, I.G. Fonte, Jr., for a waste tire closure permit, permit application No. WT48-167515, or the functional equivalent thereof, is DENIED.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blairstone Road, Tallahassee, Florida 32399-2400; 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 Order is filed with the clerk of the Department.

DONE AND ORDERED this 24th day of February, 1993, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, FL 32399-2400

ENDNOTES

1/ Section 41, Chapter 88-130, Laws of Florida, now codified as Section 403.717(3)(a), Florida Statutes.

2/ Rule 17-711.300(5), F.A.C. (eff. 2-19-89).

3/ Rule 17-711.700(5), F.A.C. (eff. 2-19-89).

4/ Respondent's Exhibit 1.

5/ Rule 17-711.700 (as amended 11-7-90); Transcript at 100-01. 6/ Petitioner's Exhibit 4.

7/ Respondent's Exhibit 1.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to:

Carole Joy Barice, Esquire

28 West Central Boulevard Orlando, Florida 32801

and by hand delivery to:

Joyous D. Parrish Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Building The DeSoto Building 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee, Florida 32399-1550

Tallahassee, Florida 32399-1550

W. Douglas Beason, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399-2400

this 24th day of February, 1993.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DANIEL H. THOMPSON

General Counsel

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

================================================================= DISTRICT COURT OPINION

=================================================================

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

I. G. FONTE, JR., IN THE DISTRICT COURT OF APPEAL OF FLORIDA

Appellant, SECOND DISTRICT

v. Case No. 92-00947

DOAH Case No. 92-133

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Appellee.

/ Opinion filed February 23, 1994.

Appeal from the Department of Environmental Regulation.

Carole Joy Barice of Fowler, Barice & Feeney, P.A., Orlando, for Appellant.

W. Douglas Beason, Assistant General Counsel, Tallahassee, for Appellee.

RYDER, Acting Chief Judge.

I.G. Fonte, Jr. attacks the Department of Environmental Regulation's final order denying him a closure permit by default for his waste tire site. Because the Department erred in rejecting the hearing officer's factual conclusion, the order is reversed and remanded for the issuance of a default closure permit. Preliminarily, this court denied the Department's motion to dismiss the appeal because the State has a right to assert a lien on the real property on which the waste tire site is located equal to the estimated cost to bring the site into compliance. S. 403.709(4), Fla. Stat. (1991). "[A]n otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined." Godwin v. State, 593 So.2d 211 (Fla. 1992). Thus, we turn to the merits of the case.

Mr. Fonte, the owner of a waste tire site near Orlando, attended the Department's meeting in Tallahassee regarding the Solid Waste Act of 1988, chapter 403, Florida Statutes (1988). The act required persons who had waste tire sites to notify the Department by April 1, 1989, and also established the Waste Tire Fund into which all persons purchasing new tires contribute $1.00 towards the costs of disposal and cleanup of existing waste tire sites. At the meeting, the Department distributed notification forms and explained what was essentially an amnesty program whereby it would use monies from the Waste Tire Fund to remove tires from sites where the owner lacked financial capability.

Mr. Fonte informed the Department at that time that he did not have the resources to remove the tires from his site.

On March 27, 1989, Mr. Fonte completed and submitted a Waste Tire Site Notification Form to the Department's Orlando district office. His attorney subsequently filed an application for a waste tire site closure permit. On the same date he filed his permit application, the Department entered a memo in his file indicating that such sites were to be "placed in limbo" pending further agency decisions on site prioritization and funding. Mr. Fonte never received notice of this memo or the Department's decision to defer action on his permit application. On August 8, 1989, the Department requested information regarding his permit application. He responded in writing to this request on August 17, 1989. The Department contends that it sent him a follow-up letter on August 30, 1989, requesting additional information. Mr. Fonte denies that he ever received the second letter. His attorney did not receive the second letter, and the Department stipulates that it never sent the letter to her. It was the Department's normal practice to mail letters requesting additional information to the applicant's attorney. The Department's next action was a handwritten notation made by the Department on a permit tracking sheet dated October 23, 1989, stating, "let's do something." On April 9, 1991, the Department sent Mr. Fonte a letter requesting that he withdraw his permit application. He refused to do so. The Department denied the permit application on June 12, 1991, based upon the applicant's failure to respond to the alleged August 30, 1989, letter requesting additional information.

Mr. Fonte requested a formal administrative hearing at which he contested the notice of permit denial on the ground that he was entitled to a default permit by operation of sections 120.60 and 403.0876(2), Florida Statutes (1991). The hearing officer's recommended order made a finding that the Department failed to timely act to deny the petitioner's permit application and that the Department should have summarily denied the application when the additional information was not received. She decided that the issue was moot because the waste tire rule required site closure by July 1, 1990, and Mr. Fonte still lacked the financial ability to remove the waste tires from the site. Thus, she recommended dismissal of the petition despite the Department's failure to timely act.

The State removed the tires and closed the site in early 1993.

Subsequently, on February 24, 1993, the Department entered its final order rejecting the hearing officer's finding that the agency had failed to timely act on the permit application and the conclusion of law that the agency was therefore subject to the default provisions, but for the July 1, 1990, deadline. The Department accordingly dismissed the petition and denied the permit application. This appeal ensued.

Appellant contends he is entitled to a default permit and that its issuance is not moot. We first address the entitlement to a default permit.

The hearing officer reached a "conclusion of law" that the Department failed to timely act to deny the permit application. We conclude that this finding is one of fact because it is a finding in a factual realm concerning which the agency may not rightfully claim special insight, and was determinable by ordinary methods of proof. The issue was simply the weight or credibility of witnesses. See Leapley v. Board of Regents, 423 So.2d 431 (Fla. 1st DCA 1982). "An agency may not reject or modify the findings of fact of the hearing officer unless the agency first determines from a review of the complete record that the findings of fact were not based upon competent, substantial evidence." National Industries, Inc. v. Comm'n on Human Relations, 527 So.2d 894, 897 (Fla. 5th DCA 1988). The obligation of the agency to honor the hearing officer's findings of

fact cannot be avoided by categorizing a finding as a "conclusion of law." National Industries, Inc. at 898. Because we conclude that the hearing officer correctly determined that the Department failed to timely act to deny the permit application, appellant is entitled to the issuance of a default permit pursuant to section 120.60(2), Florida Statutes (1991).

Turning to the mootness issue, we determine that the issuance of a default permit is not moot because the controversy has not been so fully resolved that a judicial determination can have no actual effect. See Godwin at 212. Section 403.709(c), Florida Statutes (1989), provided that funds of the Solid Waste Management Trust Fund would be used "[t]o provide funds for removal of tires from an illegal waste tire site when the site owner is financially incapable of complying with the law." After Mr. Fonte made application for the waste tire closure permit and while he was awaiting approval from the Department, chapter 90- 332, Laws of Florida, amended section 403.709, to, inter alia, impose a forty (40) percent limit on amounts expended under section 403.709(c) and to add paragraphs (3) and (4). Sections 403.709(3) and (4), Florida Statutes (1990 Supp.), mandated that the Department recoup from site owners all sums expended from the fund to manage an illegal waste tire site and empowered the Department to impose a lien equal to the cost to bring the tire site into compliance, including attorney's fees and court costs. The Department has been silent as to whether it will file a lien in the future, and, therefore Mr. Fonte is still subject to the possibility of a collateral legal consequence.

For the foregoing reasons, we reverse and remand for the entry of a closure permit by default.

DANAHY and PARKER, JJ., Concur.

Docket for Case No: 92-000133

Orders for Case No: 92-000133