STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JONES MANAGEMENT CORPORATION, )
a Florida Corporation, )
)
Petitioner, )
)
vs. ) CASE NO. 93-2658
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, Robert T. Benton, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above- styled case on September 14, 1993, in Tallahassee, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Melissa Fletcher Allaman
Attorney at Law
Post Office Drawer 1170 Tallahassee, Florida 32302
For Respondent: Jefferson M. Braswell
Lisa M. Duchene
W. Douglas Beason Assistant General Counsels
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Whether Petitioner is eligible for participation in the Abandoned Tank Restoration Program.
PRELIMINARY STATEMENT
By application dated July 1, 1991, Jones Management Company (Petitioner) sought participation in the Abandoned Tanks Restoration Program (ATRP) managed by the Department of Environmental Protection (Respondent).
More than 19 months later on February 26, 1993, Respondent issued a letter documenting its decision to deny Petitioner's eligibility for the ATRP. On March 25, 1993, Petitioner sought an administrative hearing in accordance with Section 120.57(1), Florida Statutes, regarding Respondent's denial.
Petitioner also filed with the Division of Administrative Hearings a Petition For Determination of the Invalidity of Rule pursuant to Section 120.56, Florida Statutes, challenging the validity of Respondent's Rule 17- 769.800(3)(a), Florida Administrative Code (1991). Subsequently, on September 8, 1993, Petitioner filed with DOAH an Amendment to Petition for Determination of the Invalidity of Rule pursuant to Section 120.56, Florida Statutes, amending the original petition to include a challenge to the validity of Rule 17- 769.800(3)(a), Florida Administrative Code (1993).
Petitioner's rule challenge in DOAH Case No. 93-2821RX was consolidated with DOAH Case No. 93-2658, involving Respondent's denial of Petitioner's ATRP eligibility, for the purpose of conduct of a final hearing. A separate final order addresses the issues raised in DOAH Case No. 93-2821RX.
At the final hearing, Petitioner presented the testimony of seven witnesses and one exhibit. Respondent presented testimony of three witnesses and one exhibit. The parties jointly presented 11 exhibits. A transcript of the final hearing was filed on September 22, 1993.
The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.
By order of the Director of the Division of Administrative Hearings dated January 6, 1994, this matter was assigned to the undersigned for purpose of preparation and issuance of the final order in DOAH Case No. 93-2821RX and the recommended order in DOAH Case No. 93-2658. Proposed findings of fact previously submitted by the parties were considered by the undersigned and are addressed in the appendix to this recommended order.
FINDINGS OF FACT
The parties stipulated to findings of fact set forth in paragraphs 1.- 8.,below.
Stipulated Facts
Respondent has documented contamination from the abandoned petroleum storage system.
The abandoned petroleum storage system has been properly closed.
Petitioner submitted an application to Respondent on Respondent's forms 17-769.900(3) and (4), F.A.C., which was postmarked on or before June 30, 1992.
The site is not eligible for cleanup pursuant to Section 376.3071(9) and (12), Florida Statutes, the Early Detection Incentive Program, or the Florida Petroleum Liability and Restoration Insurance Program pursuant to Section 376.3072, Florida Statutes.
This site is not owned or operated by the federal government.
This site did not have leaking tanks that stored pollutants that are not petroleum products as defined in Section 376.301, Florida Statutes.
Respondent was not denied access to this site.
Petroleum contamination was not discovered after the application deadline of June 30, 1992.
Additional Facts
Petitioner, a Florida corporation with its principal place of business in Leon County, Florida, is in the business of owning and leasing property. Petitioner is the fee simple owner of property located at 2022 Wahnish Way in Tallahassee, Florida.
The property located on Wahnish Way was leased to James T. "Pete" Thomas by Petitioner's predecessor in title. Thomas operated a gasoline station and automobile repair garage on the property. The lease with Thomas was continued by Petitioner without change upon Petitioner's assumption of the legal title to the property in 1985.
Prior to Petitioner's assumption of title to the property, Thomas had installed four petroleum storage systems in a four tank pit on the property in the early 1970's. Each tank and its integral piping is a petroleum storage system, as defined by Section 376.301(15), Florida Statutes (1991).
In the early 1980's, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum product. In 1982, Thomas ceased using the southernmost tank in the pit for the storage of petroleum products for subsequent consumption, use or sale. The distributor ceased placing gasoline in the southernmost tank.
Later, in compliance with subsequent statutory enactments, Thomas registered all of the tanks, including the abandoned southernmost tank with Respondent by the statutory deadline of December 31, 1984. Although Thomas signed the registration documents as an agent of Petitioner, he was not such an authorized agent and the registration occurred without the knowledge or approval of Petitioner. As a result, Petitioner cannot be viewed as having filed the registration.
Petitioner, unaware that Thomas had experienced any product loss problems or that the tanks on the property had been registered by Thomas with Respondent, became aware of both matters following receipt of a letter from government officials of Leon County, Florida, on November 20, 1990. As set forth in that letter, Petitioner was apprised that the tanks were not in compliance with State of Florida standards and would have to be closed or retrofitted to bring the tanks into compliance.
Following receipt of the letter, Petitioner informed Thomas that selling of gasoline at the site was to be discontinued immediately. Closure of the tanks, performed in early 1991 by contractors retained by Petitioner, consisted of excavation and removal of the petroleum storage systems from the property. All four tanks were in the tank pit side by side, from the northernmost end of the pit to the southern end of the pit fronting on Osceola Street in Tallahassee, Florida.
When the removal was completed, a Closure Assessment form was prepared by one of the contractors, Jim Stidham and Associates, in accordance with requirements of Florida law. During that process, excessive contamination from petroleum product of the soils in the extreme south end of the tank pit was discovered.
Excessive contamination, defined as anything more than 500 parts per million, was located beneath the southernmost pump on the southern end of the pump island and in the southern end of the pit. Both soil sample seven in the southernmost end of the pit and soil sample 11 under the southernmost pump document these unacceptable high levels of contamination. A 20 foot soil boring as near as possible to the southernmost tank on the site revealed the unacceptable levels of contamination extended to that depth.
As supported by the testimony of James A. Stidham, Petitioner's expert in the assessment of contamination caused by underground petroleum storage tanks, the location of contamination in the pit area establishes that the tank causing the contamination was the southernmost tank. In view of the location of the contamination in the pit area, the tank discovered to have a hole in it at the time of removal was the southernmost tank. The excessive contamination located at the shallow depth of two feet under the southernmost pump resulted from the improper disconnection of piping attached to the pump and is not attributable to the leak in the tank.
Each tank was connected by piping on the eastern end of each tank to the corresponding pump. The southernmost pump was not used after 1982 and was missing integral parts by the time the tanks were closed.
In the course of exploring options for clean up of the property, Petitioner filed for assistance from Respondent in the form of participation in the ATRP. Unaware of the true date of the cessation of use of the southernmost tank, Petitioner gave the date of last use for all tanks in the pit by stating that the "tanks were taken out of service between December 15, 1990 and January 15, 1991." Petitioner provided this response to Respondent's July 30, 1991 request for further information on August 6, 1991.
Although Respondent made an initial determination to deny Petitioner's application in the middle of August, 1991, that action was not communicated to Petitioner. Instead, Petitioner's application was held by Respondent, pending possible amendment to Section 376.305(7), Florida Statutes (1991), the law controlling admission to the ATRP. Respondent held Petitioner's application for a total of 19 months before issuance of a formal decision to deny the application on February 26, 1993. Such delay by Respondent is unreasonable.
Respondent's denial of Petitioner's application was based upon the eligibility requirement restricting ATRP participants to those situations where the petroleum storage system has not stored petroleum products for consumption, use or sale after March 1, 1990, and the belief of Respondent's personnel that all storage systems on Petitioner's property had stored products beyond that date. Specifically, Respondent eventually gave notice that it intended to deny Petitioner's application for participation in the ATRP for the following reason:
Eligibility in the Abandoned Tank Restoration Program is restricted to those petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990, pursuant to Section 17-769.800(3)(a), Florida Administrative Code.
Respondent utilized provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to permit entry of some applicants into the ATRP, demonstrating that Respondent did not consider the March 1, 1990 deadline contained in provisions of Subsection 376.305(7)(b), Florida Statutes (1991), to be absolute.
As attested at the final hearing by Respondent's employee, Respondent considered "variables" when determining whether to enforce the March 1, 1990, deadline. Those variables comprise the criteria listed in Subsection 376.305(7)(f), Florida Statutes (1991).
By use of those variables, Respondent effectively applied provisions of Subsection 376.305(7)(f), Florida Statutes (1991), to some program applicants other than Petitioner and permitted their participation while choosing to refrain from final agency action under that same criteria with regard to Petitioner's application pending subsequent legislative enactment.
Petitioner's southernmost tank is an abandoned petroleum storage system that was not required to be registered with Respondent when it was in service; the system came into the possession of Petitioner following its abandonment; was never returned to service; and is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
The burden of proof in this proceeding is upon the Petitioner. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The relevant statutory provisions that govern the ATRP are found in Section 376.305(7), Florida Statutes. As pointed out in DOAH Case No. 93- 2821RX, the law extant at the time of submission of Petitioner's application was the 1991 version of that statute. The use of the 1991 version of the statute is further supported by Respondent's failure to act officially on Petitioner's application for approximately 19 months after initial receipt until the enactment of legislative changes repealing Subsection 376.305(7)(f), Florida Statutes (1991). The repeal of this subsection eliminated a substantive right of applicants such as Petitioner to an avenue for participation in the ATRP.
Since provisions of Section 376.305(7), Florida Statutes (1991), govern this matter, any challenge to Respondent's action pursuant to provisions of Section 376.305(7), Florida Statutes (1993), is a moot issue which will not be considered further.
Subsection 376.305(7)(b), and Subsection 376.305(7)(c), Florida Statutes (1991), regulate eligibility for the ATRP and read as follows:
For purposes of this section, the term "abandoned petroleum storage system" shall mean any petroleum storage system that has not stored petroleum products for consumption, use, or sales after March 1, 1990, and:
Was not required to be registered with the department when the system was in service;
Was registered by a previous owner who is not the current owner or operator; or
Was placed out of service after December 31, 1988, due to the responsible person's decision not to continue in business at that site for storing petroleum products for consumption, use or sale.
* * *
The department shall establish the Abandoned Tank Restoration Program to facilitate the restoration of sites contaminated by abandoned petroleum storage systems under the restoration program of the Petroleum Liability Insurance and Restoration Program in s. 376.3072. To be included in the Abandoned Tank Restoration Program, the responsible person must close the storage tank system in accordance with rules adopted pursuant to s. 376.303, and shall submit an application to the department on forms supplied by the department, by June 30, 1992, demonstrating that:
The abandoned storage system was placed out of service due to the responsible person's decision not to continue in business; and
The site with the abandoned petroleum storage system is not otherwise eligible for cleanup pursuant to s. 376.3071(9) or s. 376.3072.
Subsection 376.305(7)(f), Florida Statutes (1991), provides exemption from criteria set forth Subsection 376.305(7)(b), and Subsection 376.305(7)(c), Florida Statutes (1991), and reads as follows:
(f) Notwithstanding other criteria set forth in this section, any petroleum storage system that was not required to be registered with the department when such system was in service, was purchased by the current owner after the system was abandoned, was never returned to service, and is not otherwise eligible for cleanup pursuant to s. 376.3071(9) or s. 376.3072 is eligible for
the Abandoned Tank Restoration Program.
As found in DOAH Case No. 93-2821RX, provisions of Respondent's Rule 17-769.800(3)(a), Florida Administrative Code (1991), apply only those participation requirements found in Subsection 376.305(b) and Subsection 376.305(c), Florida Statutes (1991). In the absence of a applicant's ability to meet those requirements, consideration of the application is then conducted pursuant to Subsection 376.305(7)(f), Florida Statutes (1991), to determine if the applicant qualifies for the waiver of participation requirements.
As a consequence of applying Subsection 376.305(7)(f), Florida Statutes (1991), to the facts of the present case, participation by Petitioner in the ATRP is possible. Petitioner's participation in the ATRP requires that any system not have been subject to registration requirements when it was in service; that Petitioner came into possession of the system following its abandonment; that Petitioner never returned the system to service; and that the system is not otherwise eligible for cleanup pursuant to Subsection 376.3071(9), Florida Statutes, or Section 376.3072, Florida Statutes. Petitioner's southernmost petroleum storage system meets those requirements.
Respondent's concern that qualification of one of Petitioner's systems would violate the general rationale of the program to provide assistance only for instances of contamination where ongoing activities do not pose the threat that cleanup efforts will prove premature, is misplaced. All systems were removed in 1991 and Petitioner has discontinued all storage of petroleum products for consumption, use or at the location.
Based on the foregoing, it is hereby
RECOMMENDED that a final order be entered granting Petitioner's application for participation in the ATRP with regard to contamination resulting from Petitioner's southernmost petroleum storage system.
DONE AND ENTERED this 1st day of February, 1994, in Tallahassee, Leon County, Florida.
DON W. DAVIS
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 1st day of February, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2658
The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties:
Petitioner's Proposed Findings.
1.-23. Adopted, though not verbatim. Respondent's Proposed Findings.
1.-2. Rejected, not supported by weight of the evidence. 3.-4. Rejected, subordinate to HO findings on this point. 5.-11. Accepted.
Rejected, relevance.
A mischaracterization of the evidence in that the testimony establishes that an existing lease agreement was continued.
Accepted to the extent that the evidence establishes that there were four tanks in the pit.
Rejected, credibility, weight of the evidence as to the accuracy of the registration form in the face of conflicting evidence.
16.-18. Rejected, weight of the evidence. 19.-20. Accepted.
21.-22. Rejected, subordinate.
Accepted.
Rejected, relevance. 25.-26. Accepted.
27.-29. Rejected, subordinate.
Rejected, relevance.
Rejected, argumentative.
Accepted.
Rejected, legal conclusion, argumentative.
COPIES FURNISHED:
Melissa Fletcher Allaman Attorney at Law
Post Office Drawer 1170 Tallahassee, Florida 32302
Jefferson M. Braswell Lisa M. Duchene
W. Douglas Beason Assistant General Counsels
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Kenneth Plante General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Virginia B. Wetherell Secretary
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
JONES MANAGEMENT CORPORATION, )
)
Petitioner, )
)
vs. ) OGC CASE No. 93-1149
) DOAH Case No. 93-2658 DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Respondent. )
)
FINAL ORDER
On February 1, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Petitioner, Jones Management Corporation (hereafter "JMC"), and to the Respondent, State of Florida Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department"). A copy of the Recommended Order is attached hereto as Exhibit A.
On February 16, 1994, the Department timely filed its Exceptions to the Recommended Order. JMC timely served its Response to Exceptions to Hearing Officer's Recommended Order on February 28, 1994. The Department filed a proposed Final Order on March 3, 1994. The matter is now before the Secretary of the Department for final agency action.
BACKGROUND
The following background facts and procedural matters are undisputed in this proceeding. JMC is, and at all times material to this proceeding has been, a Florida corporation having its principal place of business in Leon County, Florida. JMC is in the business of owning and leasing property and is the current owner of certain real property located at 2022 Wahnish Way in Tallahassee, Florida. JMC is a closely-held corporation owned and operated by two brothers, Edward and Robert Jones, and their sister, Bernice Dukes.
The subject real property had been leased to James T. "Pete" Thomas (hereafter "Thomas") by the shareholders' parents, who were JMC's predecessors in title. Thomas operated a gasoline station and an automobile repair shop on the leased property beginning in the early 1970's. The business was commonly
known as "Pete's University Gulf Service." JMC (or the three family shareholders) received title to the property by inheritance in the year 1985. The lease with Thomas was continued without change upon JMC's assumption of title to the property in 1985, and the lease was finally terminated in January or February of 1991.
In the early 1970s, four underground petroleum storage tanks were in use on the leased property in connection with Thomas' service station. In the early 1980s, Thomas and his wholesale gasoline distributor determined that one of the four underground tanks was losing petroleum products.
In the year 1983, the Florida Legislature enacted Ch. 83- 310, Laws of Florida. Section 84 of Ch. 83-310 created the statutory provisions delegating to the Department the powers and duties to supervise, monitor, enforce and to adopt rules regulating underground and aboveground storage tanks containing pollutants, including oil and gasoline. One of the implementing rules adopted by the Department in May of 1984 required each owner or operator to register all existing regulated facilities by December 31, 1984. See Rule 17-61.050, Fla.
Admin. Code.
In response to these statutory and rule requirements, Thomas filed a Stationary Tank Registration/Notification Form with the Department by the December 31, 1984, deadline pertaining to the underground storage tanks at the leased site. This 1984 registration form filed by Thomas reflected that all four underground petroleum storage tanks on the leased property were in use as of December 31, 1984. (Joint Ex. No. 1)
JMC was aware that the leased property was being used by Thomas to operate a gasoline station. However, JMC did not have any knowledge of the underground tank leaking problem at the site until it received a letter from Leon County officials dated November 20, 1990. In this 1990 letter, JMC was notified by Leon County that the tanks on the leased premises were not in compliance with State of Florida standards and would have to be closed or brought into compliance with the applicable standards. (Joint Ex. No. 3)
Following receipt of this letter in November of 1990, JMC contacted Thomas and instructed him to immediately cease the selling of gasoline on the leased property. Mr. Thomas continued to operate the garage portion of the business on the leased property until June of 1991, and died soon after he closed that portion of the business. (T. 56)
All four underground petroleum storage tanks were excavated and removed from the site in early 1991. When the removal was completed, a closure assessment procedure was implemented by one of JMC's contractors as required by Florida law. During this 1991 closure assessment process, excessive contamination 1/ from petroleum products was discovered at the south end of the tank pit by JMC's consultants. (Joint Ex. No. 4) This excessive contamination was also documented by the Department. The petroleum storage system was properly closed in 1991 in accordance with the applicable statutory and rule standards.
In the course of exploring options for cleanup of the subject property, JMC sought assistance from the Department. On July 1, 1991, JMC filed an application for eligibility in the Abandoned Tank Restoration Program (hereafter "ATRP"). (Joint Ex. No. 5) The ATRP provides financial assistance to facilitate the restoration of qualifying sites contaminated by abandoned petroleum storage systems. See, Sections 376.305(7) and 376.3071(12), F.S.
During the application review process, the Department requested further information from JMC. On August 6, 1991, JMC advised the Department in writing that all four tanks "were taken out of service between December 15, 1990, and January 1, 1991." (Joint Ex. No. 6)
The Department made a preliminary determination to deny JMC's application in mid-August of 1991, but did not advise JMC of this preliminary determination. Instead, the Department held JMC's application pending potential revision of Section 376.305(7), F.S. (1991), which contained the primary statutory provisions governing participation in the ATRP.
Section 376.305(7), F.S., was later substantially revised effective July 1, 1992, by the passage of Ch. 92-30, s. 6, Laws of Florida. However, none of the revisions altered the eligibility requirements in a way that would benefit JMC's claim. In fact, the 1992 revisions eliminated subsection 376.305(7)(f) of the 1991 statute. That subsection was relied upon by JMC during the de novo proceedings before the Hearing Officer, and is discussed in more detail in the rulings on exceptions.
On February 26, 1993, the Department issued its notice of ineligibility for participation in the ATRP for JMC's Facility No. 378510355. The basic reason given by the Department for its intent to deny JMC's application for participation in the ATRP was the eligibility requirement restricting ATRP participation to petroleum storage systems that have not stored petroleum products for consumption, use or sale after March 1, 1990.
On March 25, 1993, JMC filed its Petition for Formal Administrative Hearing challenging the Department's notice of ineligibility for participation in the ATRP. JMC's petition challenging the denial of its application was forwarded to DOAH and was assigned Case No. 93-2658. JMC subsequently filed a related Petition for Determination of the Invalidity of Rule 17- 769.800(3)(a), Florida Administrative Code, which was forwarded to DOAH and assigned Case No. 93- 2821RX. The two cases were consolidated for the purpose of the conduct of the final hearing.
A formal hearing was held in Tallahassee on September 14, 1993, before DOAH Hearing Officer, Robert T. Benton. Testimony of a total of ten witnesses and documentary evidence were presented at the hearing on behalf of JMC and the Department. The parties jointly presented eleven exhibits which were admitted into evidence. A transcript of the final hearing was filed on September 22, 1993.
On January 6, 1994, the Director of DOAH entered orders in Case Nos. 93- 2658 and 93-2821RX notifying the parties of the departure from DOAH of Robert T. Benton. These two cases were reassigned to DOAH Hearing Officer, Don W. Davis, for the purpose of preparing a Recommended Order in Case No. 93-2658 and a Final Order in DOAH Case No. 93-2821RX. 2/
The key issues presented in DOAH Case No. 93-2658 were (1) whether JMC's application was governed by the provisions of Subsection 376.305(7)(f), F.S. (1991), and (2) whether JMC's application met the requirements of this 1991 statutory subsection based on the facts in this case.
The Hearing Officer concluded in the Recommended Order (hereafter "RO") that section 376.305(7)(f), F.S. (1991), governed the issue of JMC's eligibility in the ATRP. (RO, paragraphs 29 and 30). The Hearing Officer also concluded
that JMC had proven its entitlement to participation in the ATRP pursuant to the provisions of this 1991 statutory subsection based on the evidence presented at the final hearing. (RO, paragraphs 32 and 34).
The Hearing Officer ultimately recommended that the Department enter a final order granting JMC's application for participation in the ATRP with regard to "contamination resulting from Petitioner's southernmost petroleum system." (RO, page 12).
RULINGS ON THE DEPARTMENT'S EXCEPTIONS
Preface
The Department filed a total of nine exceptions to the Recommended Order challenging portions of the Hearing Officer's Findings of Fact and Conclusions of Law. JMC filed its response disputing the merits of the Department's exceptions. As a preface to the rulings on the Department's exceptions, it is critical to determine the appropriate standard of review imposed by law on an agency in reviewing a Recommended Order under the unusual circumstances presented in this proceeding where the Hearing Officer who prepared the Recommended Order did not conduct the final hearing.
JMC's response to the Department's exceptions to the Hearing Officers' factual findings relies on the general rule of administrative review that an agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla.
1st DCA 1987).
A related general rule of agency review cited by JMC is that the agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the province of the hearing officer.
Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). These general rules governing review of factual findings are also applicable to the appellate courts of this state. Koltay v. Div. of Gen. Regulation, Dept. of Business, 374 So.2d 1386, 1391 (Fla. 2d DCA 1979).
In view of the above general rules, the findings of fact of a hearing officer usually arrive at the agency review level with a strong presumption of correctness. The rationale underlying this presumption of correctness is that the fact finder can observe the demeanor and other nonverbal characteristics of the witnesses to determine their credibility. The emphasis given by the witnesses, gestures and other nonverbal communication are reasons for a general rule that findings of the trier of the facts should rarely be disturbed. See, e.g., Florida Appellate Practice (2d ed.), s. 7.3.
In this proceeding, however, the actual "trier of the facts" did not prepare the Recommended Order. Hearing Officer Robert Benton, before whom the final hearing was held in September of 1993, left DOAH without preparing a Recommended Order. This case was subsequently reassigned to Hearing Officer Don Davis for the purpose of the preparation and issuance of a Recommended Order.
There is no indication in the record that Hearing Officer Davis was present at the DOAH final hearing.
Thus, Hearing Officer Davis did not see or hear the ten witnesses who testified before Hearing Officer Benton and did not have the benefit of observing their demeanor and other nonverbal characteristics discussed above. Rather, the findings of fact in the subject Recommended Order were based solely on the Hearing Officer's review of the transcript of testimony given and the exhibits admitted into evidence at the DOAH final hearing.
Consequently, Hearing Officer Davis is in the same position here as the Secretary of the Department, i.e., having to review a "cold" record. In such situations, the same strong presumption of correctness of the factual findings of the hearing officer is not applicable. See, e.g., West Shore Restaurant Corp. v. Turk, 101 So.2d 123, 126 (Fla. 1958); Hinkle v. Lindsey, 424 So.2d 983,
984 (Fla. 5th DCA 1983); Traub v. Traub, 135 So.2d 243, 244 (Fla. 2d DCA 1961);
and Sconver v. Scheper, 119 So.2d 408, 412 (Fla. 2d DCA 1960).
The Traub case presented an analogous procedural situation where the judge who had heard the testimony of the witnesses subsequently resigned from the bench and the transcribed testimony was then submitted to another judge who entered the final decree. The court concluded in the Traub opinion that "[t]his decree was entered upon a "cold record" and, therefore, the usual rule as to the weight to be accorded to the findings is not applicable." Id. at 244.
In Turk, supra, the trial judge entered a final decree based solely on a written record consisting of affidavits, depositions and exhibits. The Florida Supreme Court reversed the lower court and observed in the Turk opinion that the "presumption of correctness due the ruling of a chancellor based on a written record ... is slight for the reason that we have everything before us that he had before him and we have the same opportunity to weigh it as did the chancellor." Id. at 126.
Based on the above cited legal authorities, it is apparent that the Secretary of the Department has more liberty in this proceeding to modify or reject the findings of fact of Hearing Officer Davis than in the usual case where the recommended order is entered by the hearing officer who presided at the final hearing. In addition, the established case law of Florida holds that an agency reviewing a recommended order is free to exercise its judgment and reject the hearing officer's conclusions of law. See, e.g., MacPherson v.
School Bd. of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); and Alles
v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
Exceptions 1, 2 and 3
In these three exceptions, the Department contests the validity of portions of the Hearing Officer's findings of fact in paragraphs 12, 18 and 19 of the Recommended Order. JMC's response opposes the Department's exceptions, contending that these factual findings of the Hearing Officer are supported by "competent, substantial evidence" presented on behalf of JMC at the DOAH final hearing and may not be rejected on agency review.
The essence of the challenged factual findings in paragraphs 12, 18 and 19 is that a hole in the southernmost of the four underground petroleum tanks was the source of the contamination at the site in the early 1980s, and that this southernmost tank was not used to store petroleum products after 1982. These factual findings are of special significance here because subsection 376.305(7)(f), F.S. (1991), was the sole legal basis for the Hearing Officer's conclusion that JMC was eligible for participation in the ATRP. (RO, paragraphs
33 and 34) These provisions of subsection 376.305(7)(f), F.S. (1991), relied upon by the Hearing Officer were deleted effective July 1, 1992, by the enactment of Ch. 92-30, s. 6, Laws of Florida, and were only in effect for one year.
One of the four requirements of the provisions of subsection 376.305(7)(f),
F.S. (1991), was that the petroleum storage system "was not required to be registered with the department when such system was in service." (emphasis supplied) All existing facilities had to be registered with the Department by December 31, 1984, pursuant to Rule 17-61.050, Florida Administrative Code. Thus, JMC would not be eligible for participation in the ATRP even under subsection 375.306(7)(f), F.S. (1991), if the southernmost petroleum storage tank was in service on this December 31, 1984, registration date.
The Department contends in its exceptions that the Hearing Officer's Findings of Fact 12, 18 and 19 are based primarily on speculative testimony which does not constitute "competent, substantial evidence" of record. The Department's exceptions appear to be well-taken.
The real property on which Pete Thomas operated his gasoline station and garage was not inherited by the Jones brothers and their sister (the sole stock holders of JMC) until 1985. (T. 32, 35 and 57) The only witnesses who testified on behalf of JMC at the final hearing professing any personal knowledge of the condition of the underground and aboveground structures at Pete Thomas' service station prior to the year 1985 were Wilbur Taylor and Joe Winterle.
Wilbur Taylor was a personal friend of Pete Thomas and a regular customer at his gasoline station for many years. However, Mr. Taylor did not give any testimony concerning JMC's contention that the southernmost underground petroleum tank was leaking in the early 1980s and was not used after 1982.
Taylor's testimony was limited to the condition of the southernmost gasoline pump and was insubstantial and speculative even as to that issue.
Taylor testified that he "didn't think" that the southernmost pump was being used by Pete Thomas (T. 70), but he never identified with any specificity the time period involved. Also, Mr. Taylor candidly admitted that "with me running in and out, I couldn't say that he didn't use it" [the southernmost pump). (T. 70) Taylor also testified that the southernmost pump had an out-of- order sign on it at some unspecified period of time, but he didn't know when the sign was placed on the pump. (T. 72)
Joe Winterle is the owner of a wholesale gasoline and fuel oil business which delivered petroleum products to Thomas' gasoline station beginning in the late 1950s. Winterle testified that he knew about a leaking problem with one of the underground storage tanks there and that his business stopped putting petroleum products in that tank prior to 1985. (T. 74-75) However, Winterle admitted on cross-examination that he did not know which of the four underground tanks at Thomas' gasoline station was leaking and was no longer being used prior to 1985. (T. 77) Winterle also admitted that he wasn't sure whether or not Thomas stopped using the southernmost pump prior to 1985. (T. 77)
In Finding of Fact No. 18, the Hearing Officer finds that the contamination at this facility was caused by a hole in the southernmost tank. This finding was based primarily on the testimony of James Stidham. Mr. Stidham is the
President of the engineering firm that prepared the closure report for JMC in 1991. Stidham was qualified at the hearing as an expert in underground storage tank contamination assessment.
Mr. Stidham's firm was only hired by JMC to conduct soil borings at the site and to analyze the data. (T. 171) Stidham was not at the site when the tanks were removed (T. 176), and there is no evidence of record that he ever visually inspected the tanks after their removal. Stidham first testified that it was his opinion that the contamination at the site came from the southernmost tank "based on the report from the County that there was a hole in the tank, in the southernmost tank." (T. 180)
Mr. Stidham later admitted on examination by Hearing Officer Benton that his opinion was based on an erroneous understanding that Leon County's Inspection Report dated May 2, 1991, contained the statement that the southernmost tank had a hole in it. (T. 184-185) However, numbered paragraph 7 of Leon County's report only indicates that one of the tanks had a hole. (T.
184; Joint Ex. 8, page 1)
Alan McKinnon, who wrote the report for Leon County, testified at the hearing that he never personally inspected the tanks and that he received this information concerning a hole in a tank from Stidham's project manager, Chris Brockmeier. (T. 103-104) However, Mr. Brockmeier later testified that he also was not present when the tanks or pumps were removed and that, of his personal knowledge, "anything is possible." (T. 152-153)
Thus, Stidham initially gave an expert opinion formulated prior to the hearing based on "double hearsay." Even in an administrative hearing, hearsay evidence is insufficient in itself to support a finding of fact of a hearing officer. See, Section 120.58(1)(a), F.S.; and McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 585 (Fla. 1977).
Moreover, it is evident that Stidham's expert opinion was influenced by his misconception that Leon County's inspection report indicated that there was a hole in the southernmost tank. It is an established rule of evidentiary law that an expert opinion based on facts not supported by the record cannot constitute proof of the facts necessary to support the expert opinion, and that such "tainted" expert testimony does not constitute competent, substantial evidence. See, e.g., Arkin Construction Co. v. Simpkins, 99 So.2d 557, 561 (Fla. 1957); and D'Avila, Inc., v. Mesa, 381 So.2d 1172, 1173 (Fla. 1st DCA 1980).
Mr. Stidham also testified that the flow and location of contamination at this site is dependent on subterranean features such as clay and sand layers that were not taken into account in reaching his expert opinion. (T. 186-187) Stidham admitted that the contamination could have come from any of the tanks, depending on how those subterranean features were arranged and how the contamination interacted with those subterranean features. (T. 186) Stidham ultimately broadened his opinion and concluded that the contamination happened in the "southern end" of the pit. (T. 187)
The Hearing Officer also found in Finding of Fact 19 that "[e]ach tank was connected by piping on the eastern end of each tank to the corresponding pump." This finding was apparently based on the testimony of Stidham's project manager, Chris Brockmeier, that the four tanks sat in a row close to the pumps and that "each tank was connected to a pump." (T. 141)
During the course of his testimony, Mr. Brockmeier admitted that he had no knowledge of the piping configuration at the facility, because "[a]ll the piping work was underneath the concrete" when he visited the property in January or February of 1991. (T. 151, 157) Brockmeier also did not know whether the southernmost tank was connected to the southernmost pump. (T. 141-142, 151)
This testimony of Wilbur Taylor, Joe Winterle, Jim Stidham and Chris Brockmeier referenced above is wrought with misconception, hearsay, vagueness and speculation. In addition, the testimony of Stidham and Brockmeier was based on visits to the site and analysis of soil borings made in 1991. The remoteness of time from the critical period here prior to 1985 renders this testimony even more speculative in nature. Such testimony does not constitute "competent, substantial evidence" to support the Hearing Officer's findings of fact in paragraphs 12, 18 and 19.
In view of the above, the Department's Exceptions 1, 2 and 3 are granted.
Exception No. 4
In this exception, the Department takes issue with the Hearing Officer's conclusion in the last sentence of paragraph 21 of the Recommended Order that the Department's delay in issuing its denial of JMC's application for participation in the ATRP "is unreasonable." JMC again responds by contending that this is a factual finding of the Hearing Officer based on "competent, substantial evidence" and should not be disturbed.
The Department argues that this determination by the Hearing Officer is actually a conclusion of law, even though it is contained with the portion of the Recommended Order designated by the Hearing Officer as "Findings of Fact." However, the Hearing Officer's determination that the Department's delay in formally denying JMC's application as "unreasonable," is in essence a mixed question of law and fact. See, e.g., Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991).
As discussed in the preface above, under the general rule of agency review not applicable here there are substantial restrictions on modifying a hearing officer's purely factual findings. However, the reviewing agency does have the authority to substitute its judgment concerning whether a certain set of facts establish "reasonableness" or "unreasonableness" under the governing law. Id. at 1328.
There appears to be no sound legal basis for the Hearing Officer concluding that the Department's processing of JMC's application was unreasonably long under the circumstances of this case. JMC's application presented a prima facie case of ineligibility for the ATRP under all subsections of both the 1991 and 1992 versions of 376.305(7), F.S., based on the existing rules and the data that had been submitted to the department.
A storage tank Closure Assessment Form was submitted on behalf of JMC in April of 1991. (Joint Ex. No. 4) In numbered paragraph 13 of this form, all four underground storage tanks at the facility are listed as being closed. The ATRP application form submitted by JMC on July 1, 1991, indicated in numbered paragraph 3 that the petroleum storage system was taken out of service in "February 1991." (Joint Ex. No. 5) On August 6, 1991, JMC's corporate treasurer and property manager, Robert Jones, advised the Department in writing that the "tanks were taken out of service between Dec. 15, 1990 and Jan. 15, 1991." (Joint Ex. No. 6)
This data submitted by JMC in 1991 clearly failed to comply with either the provisions of subsection 376.305(7)(b), F.S. (1991), or section 376.305(7), F.S. (1992 Supp.). Both statutory versions of the ATRP limited eligibility in the program to abandoned petroleum storage systems that have not stored petroleum products "after" or "since" March 1, 1990. Also, the Department's related Rule 17-769.800(3)(a)3. limits eligibility in the ATRP program to situations where petroleum products have "not been stored ... at that facility after March 1, 1990. (emphasis supplied)
It is undisputed here that three of the four underground tanks at Thomas' service station facility stored petroleum products until January or February of 1991. There is no evidence of record that JMC ever submitted data to the Department during the application review process claiming that the southernmost tank at the facility had not been used since the year 1982. 3/
The Department's Petroleum Insurance Administrator, William Truman, testified that he made an initial determination of JMC's ineligibility in the ATRP based on the above information in August of 1991. (T. 235-36) Mr.
Truman's uncontroverted testimony establishes that the Department acted in good faith in keeping JMC's application in abeyance pending possible legislative amendments that might subsequently render JMC eligible for assistance from the ATRP. (T. 220-237) Truman's testimony that the overwhelming backlog of approximately 4,200 pending ATRP applications delayed the issuance of the formal denial of JMC's' application after July 1, 1992, can hardly be characterized as "unreasonable." (T. 228, 237)
JMC's reliance on the cases of Attwood v. Gelbond, 40 So.2d 458 (Fla.
1949); and Lavernia v. Dept. of Prof. Regulation, 616 So.2d 53 (Fla. 1st DCA 1993) is not persuasive. The legal effect of amended statutes during a pending application was not even at issue in the Attwood decision.
In Lavernia, the appellate court actually held that the law, as amended during the pendency of the application, applied to the applicant. This holding should give little comfort to JMC here. Also, unlike this proceeding, there is no indication in the Lavernia opinion that the agency there held the application pending possible legislative amendments because the applicant was clearly ineligible under the existing law for the permit based on the data submitted by the applicant.
In addition, this Final Order concludes below that JMC would not be eligible for the ATRP program even under the requirements set forth in subsection 376.305(7)(f), F.S. (1991). Thus, JMC has not been prejudiced by the Department's actions in holding its application in abeyance for the nineteen month period.
The Department's Exception No. 4 is granted.
Exception No. 5
This exception by the Department takes issue with the Hearing Officer's Findings of Fact 22, 23, 24 and 25. Finding of Fact 22 appears to be an accurate summary by the Hearing Officer of the basic facts and law relied upon by Department staff in denying JMC's application. The Department's exception to Finding of Fact 22 suggests that the circumstances surrounding the Department's staff consideration and denial of JMC's application are not relevant because a DOAH formal hearing constitutes a de novo proceeding.
It is true that a formal hearing under Section 120.57(1), F.S., is a de novo proceeding where the parties are allowed to present additional evidence on matters not previously included in the application or in the notice of intent to issue the permit. Hamilton County Commissioners v. Florida Department of Environmental Regulation, 587 So.2d 1378, 1387-88 (Fla. 1st DCA 1991); and Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786-787 (Fla. 1st DCA 1981). However, the Department's exception cites no statutes, rules or case law holding that evidence of the agency's deliberative process leading to its decision to issue or deny a permit or benefit is totally irrelevant and inadmissible at a formal administrative hearing challenging an application denial. A review of the governing law does not reflect any visible support for this contention.
The Hearing Officer's Findings of Fact 23, 24 and 25 seemingly relate to purported evidence that the Department may have treated other similar ATRP applications differently than it treated JMC's application. Such findings would arguably have possible relevance only if JMC had asserted a "selective enforcement" claim against the Department in this proceeding. However, the record reflects that no "selective enforcement" claim was ever made by JMC either in its petition for administrative review, the Prehearing Stipulation or in the opening statement by its counsel at the DOAH final hearing.
Moreover, a review of the transcript does not reflect the testimony of any witness that the Department ever issued a notice that any applicant was eligible for participation in the ATRP under subsection 376.305(7)(f), F.S. (1991). This 1991 statutory subsection was the law relied upon by JMC at the final hearing and was the sole legal basis for the Hearing Officer's ultimate conclusion in the Recommended Order that JMC was eligible for the ATRP.
In addition, this Final Order concludes hereafter that, based on the evidence of record, JMC had not proven its eligibility to participate in the ATRP program even under the provisions of subsection 376.305(7)(f), F.S. (1991). Consequently, the Department's exception is granted as to Findings of Fact 23,
24 and 25. However, for the reasons stated above, the Department's exception to Finding of Fact 22 is denied.
Exceptions 6, 7, 8 and 9
These exceptions of the Department challenge the Hearing Officer's Finding of Fact 26 and the related Conclusions of Law 29, 30 and 34. In these paragraphs of the Recommended Order, the Hearing Officer rules that subsection 376.305(7)(f), F.S. (1991), is the statutory law governing JMC's application.
The Hearing Officer also concludes that JMC is entitled to participation in the ATRP when the provisions of this 1991 subsection are applied to the facts of this case.
At the outset here, it is important to recognize that, in paragraph 26, the Hearing Officer is basically tracking the statutory language of subsection 376.305(7)(f), F.S. (1991). While designated a "Finding of Fact," this paragraph of the Recommended Order is in substance a mixed question of law and fact.
As noted in the preface above, the reviewing agency is authorized to substitute its judgment for that of the Hearing Officer concerning whether a set of factual findings establish compliance with the governing law. Harloff, supra, at 1328. Also, as noted in the preface, at the agency review level there
is no limitation on the authority of the Department to exercise its judgment and reject the pure conclusions of law of the Hearing Officer set forth in paragraphs 29, 30 and 34 of the Recommended Order. Alles, supra, at 626.
Subsection 376.305(7)(f), F.S., was no longer in existence when the Department issued its letter in February of 1993 officially denying JMC's application. This 1991 statutory subsection was deleted in its entirety effective July 1, 1992, by the Legislature's enactment of Ch. 92-30, s. 6, Laws of Florida. This 1992 legislative enactment also amended other provisions of the 1991 ATRP statutory law, including subsections 376.305(7)(a)- (e).
The Department's exceptions contain two basic arguments. The Department first contends that the provisions of section 376.305(7), F.S. (1992 Supp.), must be given retroactive application to have any meaning, because the ATRP application deadline (June 30, 1992) contained in the 1992 statutory version precedes its effective date of July 1, 1992. The Department makes the valid point that, if the 1992 statutory law is not given a general retroactive application to ATRP applications pending on June 30, 1992, then it would be totally inoperative.
JMC's response counters by citing the general rule of statutory construction that, absent a clear legislative intent to the contrary, a law is presumed to act prospectively. There is no express legislative intent in the 1992 ATRP law that it should be given retroactive application. See, Ch. 92-30,
s. 28, Laws of Florida. JMC's response also cites case law in support of its position that, absent such clear legislative intent to the contrary, the 1992 statutory amendments should not be applied retroactively to impair or take away any vested substantive rights that JMC may have had under subsection 376.305(7)(f), F.S. (1991).
The positions of both parties appear to have merit on their face. To the extent that the ATRP provisions of Ch. 92-30, s. 6, Laws of Florida, are remedial or procedural in nature, then they may be applied retroactively. State
v. Kelley, 588 So.2d 595 (Fla. 1st DCA 1991); and Hapney v. Central Garage, Inc., 579 So.2d 127 (Fla. 2d DCA 191). A related rule of statutory construction seeming to support retroactivity here is that statutes will be given retroactive application if required by the terms of the statute. Frankowitz v. Propst, 464 So.2d 1225 (Fla. 4th DCA 1985).
However, to the extent that the 1992 statutory amendments to the ATRP law impair or take away vested substantive rights of JMC under subsection 376.305(7)(f), F.S. (1991), then a retroactive application may be prohibited by the controlling case law of Florida. See, e.g., Senfeld v. Bank of Nova Scotia Trust Company (Cayman) Ltd., 450 So.2d 1157, 1164-65 (Fla. 3d DCA 1984).
Therefore, a key issue in this consideration is whether a retroactive application of the ATRP statutory amendments made by Ch. 92-30, s. 6, Laws of Florida 1992, would impair or take away any "vested substantive rights" of JMC under subsection 376.305(7)(f), F.S. (1991). The Department essentially contends that JMC had no "vested substantive rights" under subsection 376.305(7)(f), F.S. (1991).
The Department's exceptions assert that, even if Subsection 376.305(7)(f),
F.S. (1991), did apply to JMC's application, JMC had still failed to prove its compliance with the requirements of this 1991 subsection based on the competent, substantial evidence presented at the DOAH final hearing. This basis for the
Department's exceptions appears to be well-founded in view of the prior rulings herein granting the Department's exceptions 1, 2 and 3 and the following conclusions.
Subsection 376.305(7)(f), F.S., 1991, reads as follows:
(f) Notwithstanding other criteria set forth in this section, any petroleum storage system that was not required to be registered with
the department when such system was in service, was purchased by the current owner after the system was abandoned, was never returned to service, and is not otherwise eligible for cleanup pursuant to s. 376.3071(9) or s.
376.3072 is eligible for the Abandoned Tank Restoration Program.
The first requirement for eligibility under the quoted language of subsection 376.305(7)(f), F.S. (1991), is that any petroleum storage system must be one that "was not required to be registered with the department when such system was in service." (emphasis supplied)
A review of the evidence of record reflects that the person having the most detailed knowledge concerning the condition of the underground petroleum storage tanks at Thomas' gasoline station during the period from the early 1970s to the early 1990s was the now deceased Pete Thomas, himself. Thomas, the long-time operator of "Pete's University Gulf Service," actually filed with the Department a Stationary Tank Registration Form on December 31, 1984. (Joint Ex. No. 1)
In answer to question 8 on page one of this official tank registration form, Thomas identified all four petroleum storage tanks at the service station facility as being in use as of December 31, 1984. In column (14) on page 2 of this registration form Thomas also indicated that, on December 31, 1984, tanks 1 and 3 contained leaded gasoline and tanks 2 and 4 contained unleaded gasoline. (emphasis supplied)
One of the instructions located in the rectangular block on the front page of this tank registration form requires the owner or operator to notify the department of all "storage systems within 10 days of abandonment." (Joint Ex. No. 1) This requirement is also set forth in Rule 17-61.050(1)(b)1., Florida Administrative Code. There is no evidence of record that the Department was ever officially notified by Thomas or anyone else that the southernmost tank at Thomas' service station facility had been abandoned prior to 1991.
Also, express approval by the Department is necessary to keep a petroleum storage system in an "out-of-service" status for more than three years and not be deemed abandoned. See Rule 17- 61.050(3)(b), Fla. Admin. Code. These rule provisions, adopted effective May 1, 1984, contain various inventory, monitoring and other requirements that must be complied with in order for a petroleum storage tank to be legally declared "out-of-service." The record on review is void of any evidence that Department approval was secured or that the technical requirements of this rule were met in order for the southernmost tank at Thomas' service station facility to be legally kept "out-of-service" prior to 1991.
In Finding of Fact No. 13, the Hearing Officer discounted the legal significance of this official data submitted to the Department in December of 1984 by the long-time facility operator covering the critical time period in
question here. Based on the testimony presented on behalf of JMC at the final hearing by the Jones brothers, the Hearing Officer noted that Thomas was apparently not an authorized agent of JMC in 1984 and that this registration by Thomas was without the knowledge or approval of JMC.
However, the critical factual findings presented here are whether the southernmost petroleum storage tank at Thomas' service station was leaking in the early 1980s and was not in use as of December 31, 1984. The question of whether or not Pete Thomas was an authorized agent of JMC in December of 1984 is irrelevant and immaterial to these critical factual findings for several reasons.
First, the tank registration form was filed by Thomas on the deadline date of December 31, 1984, in compliance with Rule 17- 61.050(1)(a), Florida Administrative Code. This rule provision expressly places the burden of filing the registration form on "[e]ach owner or operator." (emphasis supplied) It is undisputed here that Thomas was the operator of this service station facility beginning in the early 1970s and continuing to January or February of 1991.
Furthermore, the first page of the official tank registration form reiterates the Department's instructions requiring the form to be filed by "each owner or operator." (Joint Ex. No. 1) Thus, Pete Thomas was both authorized and required to file the subject tank registration form as the undisputed operator of the service station facility, notwithstanding his relationship or capacity with the fee owner of the real property.
In addition, the uncontroverted testimony presented at the final hearing by JMC's officers and stockholders, Edward Jones and Robert Jones, established that the real property leased to Pete Thomas was owned by their father and/or mother in their own names until sometime in 1985. (T. 33-35 and 57) JMC was obviously not the legal owner of the real property on the critical date of December 31, 1984, when Thomas filed the tank registration form with the Department. The fact that Thomas may not have been an authorized agent of JMC in 1984 does not have any probative value as to the question of the competency of the data on this official tank registration form submitted by Thomas, as the facility operator, on December 31, 1984.
In view of the above, it is the judgment of the Secretary that the southernmost petroleum storage tank at Thomas' service station facility was "required to be registered with the department when it was in service" within the meaning of subsection 376.305(7)(f), F.S. (1971).
The second requirement for eligibility under the above- quoted language of subsection 376.305(7)(f), F.S., 1991, is that the petroleum storage system must be one that "was purchased by the current owner after the system was abandoned." (emphasis supplied) This requirement was not met by JMC on two grounds. First, the Hearing Officer's critical factual findings in paragraphs 12 and 19 that Thomas had stopped using the southernmost tank and pump at his service station facility sometime during the year 1982 have been rejected as a result of the prior rulings on Department's Exceptions 1, 2 and 3. For the reasons set forth above and in these prior rulings, it is the judgment of the Secretary that this southernmost petroleum storage tank was not legally abandoned until early 1991. Thus, JMC did not purchase any "abandoned" petroleum storage system in 1985, as required by the provisions of subsection 376.305(7)(f), F.S. (1991), underlined above.
Secondly, there is absolutely no evidence of record from which the Hearing Officer could have concluded that any petroleum storage system had been "purchased by the current owner" JMC, as required by subsection 376.305(7)(f),
F.S. (1991). The undisputed testimony of JMC's officers and shareholders, Edward Jones and Robert Jones, is to the contrary.
The Jones brothers testified that the subject real property had been initially leased to Thomas by their parents, who owned the property in "their own names" and that the lease was continued on their assumption of title in 1985. (T. 33-35, 57) On cross-examination, Robert Jones admitted that "we inherited" the property. (T. 57, line 17) (emphasis supplied)
It is significant that nowhere in the Recommended Order does the Hearing Officer find or conclude that the subject petroleum storage system was, in fact, purchased by JMC or its three family shareholders. Instead, in paragraphs 26 and 34, the Hearing Officer used the non-statutory term that the system "came into possession" of JMC.
JMC argues in its response that the Hearing Officer's use of the term "came into possession" is binding because the Department failed to present any expert testimony or other evidence related to the issue of the interpretation of the statutory term "purchased." However, this position of JMC is contrary to the controlling case law of Florida holding that the interpretation of a statutory term presents a question of law and that an expert should not be allowed to testify concerning such questions of law. See, e.g., Edward J. Siebert v.
Bayport B. & T. Club, 573 So.2d 889 (Fla. 2d DCA 1990).
JMC also relies on the case of Health Care & Retirement Corp. v. Dept. of Health & Rehabilitative Services, 559 So.2d 665 (Fla. 1st DCA 1990). However, the issue in the Health Care & Retirement Corp. case, supra, was the application of the agency's non-rule policy. The law relating to interpretation of statutory language was not even discussed in this opinion. Thus, JMC's reliance on Health Care & Retirement Corp. is misplaced.
Neither the Department's exception nor JMC's response refer to any related provisions of the ATRP statutory law that contain any language defining or clarifying the critical term "purchased." Thus, we must turn to general principles of statutory construction for guidance. A basic rule of statutory construction is that the Legislature is assumed to know the plain meaning of words it uses, and to have expressed its intent by the use of the words in the statute. Thayer v. State, 335 So.2d 815 (Fla. 1976).
A related rule of statutory construction is that, absent a statutory definition, words should be given their plain and ordinary meaning, and one looks to the dictionary for the plain and ordinary meaning of words. Specialty Restaurants Corp. v. City of Miami, 501 So.2d 101, 102 (Fla. 3d DCA 1987); and State Dept. of Bus. Reg. v. Salvation Ltd., 452 So.2d 65, 67 (Fla. 1st DCA
1984). This rule was followed by the Florida Supreme Court when it defined the term "purchaser" under other Florida statutory provisions in the case of Florida Dept. of Revenue v. De Maria, 338 So.2d 838 (Fla. 1976).
In the De Maria opinion, the Florida Supreme Court concluded that: [s]ince Chapter 201 does not define the term
"purchaser" as it is used in Section 201.02,
we turn to the plain and ordinary meaning of the term as defined in Webster's New Twentieth Century Dictionary (2d unab. ed. 1971), page 1463: "purchaser: one who obtains or acquires property by paying an equivalent in money or other exchange in value."
Id. at 840.
The Department contends in its exceptions that these provisions of subsection 376.305(7)(f), F.S. (1991), were intended to provide financial relief to innocent parties who paid fair market value for the property in an "arms- length" transaction. This interpretation is clearly more in line with the De Maria rationale than JMC's position that children who receive property by inheritance from their parents should be entitled to public funding for petroleum contamination cleanup costs.
Thus, the Hearing Officer's conclusion of law in paragraph 34 of the Recommended Order implying that the fact that JMC (or its stockholders) "came into possession" of the petroleum storage systems by inheritance is legally sufficient to constitute a "purchase" under subsection 376.305(7)(f), F.S. (1991), is rejected. Consequently, JMC would not have any "vested substantive rights" under these 1991 statutory provisions that would be impaired or taken away even if the provisions of Ch. 92- 30, s. 6, Laws of Florida, were given retroactive application.
For the above reasons, the Department's Exceptions 6, 7, 8 and 9 are granted.
CONCLUSION
It is a basic rule of administrative evidentiary law that the party seeking a license, permit or benefit has the burden of proving, by a preponderance of the evidence, its entitlement to such license, permit or benefit. See, e.g., Florida Dept. of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla.
1981). JMC was in the difficult position at the DOAH hearing of having to impeach the credibility of official tank registration data submitted to the Department by Pete Thomas, the long-time operator of the petroleum storage facility, indicating that all four underground petroleum storage tanks were in- service as of December 31, 1984.
None of the witnesses who testified on behalf of JMC at the final hearing ever personally observed any of the four petroleum storage tanks in question either prior to the year 1985 or when they were removed in 1991. There was no direct testimony given by any of JMC's witnesses that the now deceased Thomas had stopped using the southernmost tank prior to 1985, as found by the Hearing Officer. Even Thomas' wholesale gasoline dealer admitted that he did not know for sure which of the four tanks at the facility in which he stopped placing petroleum products prior to 1985.
Moreover, the critical allegation by JMC that the source of contamination at the site in 1990 was from a "hole in the southernmost tank" was determined at the hearing to be essentially based on uncorroborated double hearsay. Such speculative, circumstantial and hearsay testimony does not constitute "competent, substantial evidence" of record to overcome the credibility of the pertinent tank registration data submitted to the Department by the petroleum storage facility operator in December of 1984.
Finally, even assuming that the provisions of subsection 376.305(7)(f),
(1991), should be liberally construed in favor of the applicant, neither the Hearing Officer nor the Secretary of the Department have the legal authority to substitute the term "inherited" for the unambiguous term "purchased" used by the Legislature in this 1991 statute.
IT IS THEREUPON ORDERED THAT:
Paragraph 12 of the Recommended Order is modified by deleting therefrom the last two sentences.
Paragraphs 18 and 19 of the Recommended Order are rejected in their entirety.
Paragraph 21 of the Recommended Order is modified by deleting therefrom the last sentence.
Paragraphs 23, 24, 25 and 26 of the Recommended Order are rejected in their entirety.
Paragraph 29 of the Recommended Order is modified by deleting therefrom the last two sentences.
The Conclusions of Law in paragraphs 30 and 34 of the Recommended Order are rejected in their entirety.
The Recommendation of the Hearing Officer on page 12 of the Recommended Order that an agency final order be entered granting JMC's application for participation in the ATRP program with respect to the southernmost petroleum storage system is rejected.
The Recommended Order, as modified in paragraphs A through G above, is adopted and incorporated by reference herein.
The application of Jones Management Corporation for eligibility in the Abandoned Tank Restoration Program with respect to the southernmost petroleum storage system at its facility 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 Blair Stone 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 16th day of March, 1994, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
ENDNOTES
1/ Excessive contamination is defined as anything more than 500 parts per million. (T. 137-138)
A Final Order was entered on February 11, 1994, by Hearing Officer Davis in DOAH Case No. 93-2821RX dismissing JMC's rule challenge.
JMC's claim that the southernmost tank at the facility had not been used since 1982 was apparently made for the first time during the course of this administrative proceeding.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Final Order has been sent by U.S. Mail to:
Melissa Fletcher Allaman Attorney at Law
P O Drawer 1170 Tallahassee, FL 32302
and by hand delivery to:
Don W. Davis Hearing Officer
Division of Administrative Hearings The DeSoto Bldg.
1230 Apalachee Pkwy
Tallahassee, FL 32399-1550
Ann Cole, Clerk
Division of Administrative Hearings The DeSoto Bldg.
1230 Apalachee Pkwy
Tallahassee, FL 32399-1550
Jefferson M. Braswell, Esquire Lisa M. Duchene, Esquire
W. Douglas Beason, Esquire Assistant General Counsels
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, FL 32399-2400 this 17th day of March, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Telephone: (904)488-9314
| Issue Date | Proceedings |
|---|---|
| Mar. 17, 1994 | Final Order filed. |
| Feb. 17, 1994 | Department of Environmental Protection`s Exceptions to Hearing Officer`s Recommended Order filed. |
| Feb. 01, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held September 14,1993. |
| Feb. 01, 1994 | Case No/s 93-2658, 93-2821RX: unconsolidated. |
| Jan. 06, 1994 | Notice of Unavailability of Hearing Officer and Order of Assignment of New Hearing Officer sent out. |
| Oct. 22, 1993 | (unsigned Petitioner) Proposed Recommended Order (2); Petitioner`s Notice of Filing Proposed Recommended Order filed. |
| Oct. 21, 1993 | Department of Environmental Protection`s Proposed Final Order in DOAH Case NO. 93-2821RX w/computer disk; Department of Environmental Protection`s Proposed Recommended Order filed. |
| Sep. 22, 1993 | Final Hearing Transcript filed. |
| Sep. 16, 1993 | CC of (4) Files Entered as Evidence by Petitioner filed. |
| Sep. 14, 1993 | CASE STATUS: Hearing Held. |
| Sep. 08, 1993 | (Petitioner) Amendment to Petition for Determination of the Invalidity of Rule Pursuant to Section 120.56, Florida Statutes; Petitioner`s Amendments to Exhibit and Witness Lists Contained in Prehearing Stipulation filed. |
| Sep. 07, 1993 | (Joint) Prehearing Stipulation filed. |
| Aug. 30, 1993 | (Petitioner) Notice of Filing of Respondent`s Answers to Petitioner`s First Set of Interrogatories w/Petitioner`s First Set of Interrogatories to Respondent filed. |
| Aug. 26, 1993 | (Respondent) Notice of Production of Documents; Notice of Service of Answers to Interrogatories filed. |
| Aug. 12, 1993 | (DEP) Notice and Certificate of Service of Interrogatories filed. |
| Jul. 20, 1993 | Petitioner`s First Request to Respondent to Produce Documents; Notice of Service of First Set of Interrogatories to Respondent w/Petitioner`s First Set of Interrogatories to Respondent filed. |
| Jun. 16, 1993 | Notice of Appearance of Co-Counsel for Department of Environmental Regulation filed. |
| Jun. 10, 1993 | Notice of Hearing sent out. (hearing set for 9/14/93; 10:00am; Tallahassee) |
| Jun. 10, 1993 | Order sent out. (Hearing continued until 09/14/93) |
| Jun. 07, 1993 | Joint Motion for continuance of Filing Hearing and Waiver of 30 day Requirement in Section 120.56(2), F.S. filed. |
| Jun. 03, 1993 | Amended Order sent out. (Consolidated cases are: 93-2658 & 93-2821RX) |
| May 27, 1993 | Joint Response to Initial Order filed. |
| May 21, 1993 | (Petitioner) Motion for Consolidation filed. |
| May 19, 1993 | Initial Order issued. |
| May 12, 1993 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition To Convene Formal Proceedings Pursuant To Section 120.57(1), Florida Statutes; Agency Action Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 16, 1994 | Agency Final Order | |
| Feb. 01, 1994 | Recommended Order | A petroleum storage system qualifies for assistance in the abandoned tank restoration program. Systems are the focus of the program. |
