STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ENVIRONMENTAL WASTE RECYCLERS, INC.,

Petitioner,

vs. OGC CASE NO.: 98-2759

DOAH CASE NO.: 99-1915

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

/

FINAL ORDER

On November 10, 1999, an Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order to the Department of Environmental Protection ("Department") and served a copy upon the Qualified Representative of Petitioner, Environmental Waste Recyclers, Inc. ("Petitioner"). A copy of the Recommended Order is attached hereto as "Exhibit A." Petitioner's Written Exceptions to the Recommended Order were filed on November 29, 1999. A Response to Petitioner's Exceptions to Recommended Order was filed on behalf of the Department on December 10, 1999. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

In the year 1997, Gary E. Bishop, Profession Engineer, filed a permit application with the Department on behalf of Petitioner. This application requested a permit to construct and operate a materials recovery facility1 in Leon County, Florida. On

January 7, 1998, the Department's Northwest District Office issued a "Notice of Denial of Use of Permit" in response to Petitioner's application. Petitioner subsequently filed a petition requesting a formal administrative hearing to contest the Department's Notice of Denial of its permit application.

The Department then referred the petition to DOAH and Administrative Law Judge Don W. Davis ("ALJ") was assigned to the case. A DOAH final hearing was held by the ALJ in Tallahassee on September 24, 1999. Testimony was presented on behalf of the parties and various exhibits were admitted into evidence at the final hearing. Proposed Recommended Orders were filed with the

ALJ on behalf of Petitioner and the Department after the DOAH final hearing was concluded. On November 10, 1999, the ALJ entered the Recommended Order now on agency review.

RECOMMENDED ORDER

In his Recommended Order ("RO"), the ALJ made the following factual findings:

1. Petitioner's initial permit application attempted to be filed with the Department on March 17, 1997, was not signed or accompanied by the required application fee. Therefore, this initial application was "date-stamped" and given back to the employee of Petitioner who had hand-delivered the application to the Department's office. (RO, paragraphs 1-2)

   
   

2. Petitioner filed another application on August 29, 1997, which was properly signed and accompanied by a check for the appropriate application fee. However, Petitioner subsequently stopped payment on the check for the application fee and the application fee remained unpaid at the time of the DOAH final hearing. (RO, paragraphs 3-5)

   
   

3. The Department began its review of Petitioner's latter permit application before payment was stopped on the application fee check. In the course of this application review, the Department sent a letter requesting additional information from Petitioner about the proposed materials recovery facility. The Department did not receive any response to this written request for additional information dated September 26, 1997. (RO, paragraph 4)

Based on these critical findings of fact, the ALJ concluded that Petitioner failed to provide the Department with a completed permit application and was thus not entitled to the requested permit. (RO, paragraph 11) The ALJ ultimately recommended that the Department "enter a final order DENYING Petitioner's application for the requested permit." (RO, page 4)

RULINGS ON PETITIONER'S EXCEPTIONS

Exception Nos. 1, 12 and 13

Petitioner's Exceptions 1, 12, and 13 all allege that the RO fails to consider that the Department did not properly notify Petitioner that its initial permit application submitted on March 17, 1997, was incomplete and that the required application fee was not paid at that time. These three related Exceptions are denied for the following reasons:

1. Petitioner's contention that the Department failed to timely comply with the notification requirements of current § 120.60(1), Florida Statutes, is rejected.2 This statute requires, inter alia, that an agency must notify an applicant for a license of any apparent errors or omissions in the application and request any additional information within 30 days after receipt of the application. As discussed in more detail below, I adopt the ALJ's Finding of Fact No. 3 asserting that the Department did not receive from Petitioner a properly signed application and a check for the required application fee until August 29, 1997. Therefore, the Department's letter dated September 26, 1997 (Joint Exhibit A-12) notifying Petitioner's agent, Gary Bishop, that the application was incomplete and requesting additional information was sent within the 30-day time period prescribed by §120.60(1).3

2. In addition, Rule 624.050(5)(c), Florida Administrative Code, expressly provides that the permit processing time requirements of [former] §120.60(2), now §120.60(1), shall not begin until "receipt of the proper application fee". As noted above, the ALJ properly found in the RO on review that the Department did not receive Petitioner's check for the application fee until August 29, 1997. Accordingly, the 30-day time period in §120.60(1) for notifying Petitioner that the subject application was not complete and requesting additional information about the proposed materials recovery facility did not begin to run until August 30, 1997.

   
   

3. Even though the Department did not notify Petitioner by certified mail that the required application fee was not received in March of 1997, this fact does not entitle Petitioner to issuance of the permit.4 It is uncontroverted that the Department received a check from Petitioner for the application fee at sometime subsequent to March 17, 1997.5 (Tr. 73; Joint Exhibits A-3 and A-25) There is also competent substantial evidence supporting the ALJ's finding that the Department processed and initiated its review of Petitioner's application in August of 1997, prior to Petitioner stopping payment on the application fee check. (Tr. 69-73; Joint Exhibits A-4 through A- 12)

   
   

4. The fact that Petitioner's application fee remained unpaid at the time of the DOAH final hearing was the result of Petitioner's Qualified Representative stopping payment on the application fee check, not the Department's failure to give Petitioner notice by certified mail. (Tr. 92; Joint Composite Ex. 25) Consequently, any purported error by the Department in not notifying Petitioner by certified mail in March of 1997 that the required application fee had not been received is deemed to be harmless error.

Based on the above rulings, Petitioner's Exceptions 1, 12, and 13 are denied.

Exception No. 2

This general Exception consists of an assertion by Petitioner's Qualified Representative that the "Recommended Order fails to consider that the Respondent [Department] did not afford the Petitioner its due process rights." No specific acts or omissions of the Department are set forth in Petitioner's second Exception in support of this bare assertion. However, it appears that this deprivation of "due process" claim may be related to the preceding allegations in Exception 1 that the Department "did not properly notify Petitioner that its Permit application was an incomplete application and that the Respondent did not receive the required processing fee." As discussed above, however, Petitioner's lack of proper notification arguments were either rejected or deemed to constitute harmless error.

In any event, the governing case law of Florida holds that state agencies do not have jurisdiction to dispose of constitutional "due process" issues in administrative proceedings. See Meyers v. Hawkins, 362 So.2d 926 (Fla. 1978); Gulf Pines Memorial Park v. Oaklawn Memorial Park, 361 So.2d 695, 699 (Fla. 1978); Havs v. Dept. of Business Regulation, 418 So.2d

331 (Fla. 3d DCA 1982); Harmon Brothers Rock Co. v. State of Florida Dept. of Environmental Regulation, 15 F.A.L.R. 2183, 2186 (Fla. DER 1993). Such constitutional issues are for the courts alone to determine and are not for administrative resolution. Metro. Dade County v. Dent. of Commerce, 365 So.2d 432, 435 (Fla. 3d DCA 1978). Accordingly, Petitioner's Exception 2 is denied.

Exception Nos. 3, 4, and 5

Petitioner's third Exception asserts that the Recommended Order "fails to consider the testimony and evidence submitted in this case." Petitioner's fourth and fifth Exceptions allege, respectively, that the ALJ's Findings of Fact "are not based exclusively on the record", but are "based on hearsay which did not supplement or explain other evidence." Nevertheless, Petitioner's Exceptions fail to cite to any portions of the record on review containing testimony or documentary evidence arguably supporting these conclusory allegations by its Qualified Representative. Petitioner's Exceptions also fail to identify the specific factual findings of the ALJ, which it contends are not based on evidence of record or are based entirely on hearsay.

These bare allegations of Petitioner's Qualified Representative without specific references to particular factual

findings of the ALJ and citations to the DOAH record identifying supporting evidence are insufficient bases to reject the ALJ's Findings of Fact. See, e.q., Schneider v. Currev, 584 So.2d 86,

87 (Fla. 2d DCA 1991) (concluding that unproven assertions contained in a pleading are not matters that a reviewing tribunal may properly acknowledge).

It is not the responsibility of a reviewing agency to do a comparative review of a Recommended Order and a party's Exceptions thereto in an attempt to identify findings of fact which a party may contend to be erroneous. Cutter v. Buckeve Florida, L.P., 19 FALR 2775, 2777 (Fla. DEP 1997). A reviewing agency is also not responsible for scrutinizing a DOAH record in an effort to locate previously unidentified evidence arguably supporting the claims of a party filing Exceptions to a Recommended Order. Cummings v. Buckeye Florida L.P., 20 FALR 578, 584 (Fla. DEP 1997); Dent. of Environmental Protection v.

Wilson and Sons Seafood, Inc., 20 FALR 94, 95 (Fla. DEP 1997). These responsibilities rest with the party filing the Exceptions.

Based on the above rulings, Petitioner's Exceptions 3, 4, and 5 are denied.

Exception Nos. 6 and 7

Exception 6 takes exception to the third sentence of the ALJ's Finding of Fact No. 1 asserting that Petitioner's original permit application was date-stamped on March 17, 1997, "but in the absence of the application fee and proper signatories, was not viewed [by the Department] as an application ready for review." Exception 7 takes exception to the portion of the ALJ's Finding of Fact No. 2 stating that the March 17, 1997, application submittal was "returned to Petitioner's employee upon observing the absence of the application fee."

An agency reviewing a DOAH recommended order may not reject or modify the findings of fact of an administrative law judge "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence". See §120.57(1)(1), Florida Statutes. Accord Ober v. Dept. of Environmental Protection, 688 So.2d 435, 437 (Fla. 5th DCA 1997); Florida Dept. of Corrections v. Bradlev, 510 So.2d 1122 (Fla. 1st DCA 1987). With one minor modification, the challenged factual findings of the ALJ are based on competent substantial evidence of record and are adopted in this Final Order.6 (Tr. 28, 3940, 42-43, 52, 56-59, 74-75)

The challenged findings are also supported by the uncontroverted facts of record that the subject permit

application was certified by Petitioner's consulting engineer, Gary Bishop, on April 4, 1997, and was signed on behalf of Petitioner by O. C. Allen on May 1, 1997. (Joint Ex. A-15, page

31) Since Petitioner agrees that its permit application was initially submitted to the Department on March 17, 1997, this application would have been unsigned arid uncertified on that date. Thus, the rule requirement that all applications for a Department permit (with one exception not applicable here) "shall be certified by a professional engineer" was not complied with by Petitioner as of March 17, 1997. See Rule 62-4.050(3), Florida Administrative Code.

The challenged factual finding of the ALJ is further supported by the fact that Petitioner's check for the application fee was dated May 12, 1997, over 55 days after the initial submittal of Petitioner's application. (Joint Composite Ex. A-

1. Gary Bishop testified at the final hearing that an employee of his office delivered Petitioner's application to the Department's Pensacola office on or about March 17, 1997, and Mr. Bishop admitted that no check for the application fee was submitted at that time. (Tr. 52, 55) Mr. Bishop even stated that he was informed by O. C. Allen to go ahead and submit the application at that time without a check for the application fee. (Tr. 56) Since Petitioner's application submittal in March of 1997 was not accompanied by the required processing fee, the Department was required by statute to acknowledge receipt of the application and to immediately return it unprocessed to the applicant. See § 403.087(6)(a), Florida Statutes. The Department was also mandated by §403.087(6)(a) to "take no further action until the application is received with the appropriate fee." There is competent substantial evidence of record that the Department substantially complied with these requirements of §403.087(63(a).

   With the minor modification noted above to the ALJ's Finding of Fact No. 2, Petitioner's Exceptions 6 and 7 are otherwise denied.

   
   

   Exception No. 8

   
   

   Petitioner's eighth Exception takes issue with the ALJ's Finding of Fact 3 asserting that "on August 29, 1997, Petitioner again submitted the application to Respondent's offices." This factual finding is based on competent substantial evidence of record and is adopted. (Tr. 17-28, 71-73; Joint Exhibits A-1 through A-5) Petitioner contends that its permit application was not resubmitted, but that it was lost by the Department and subsequently found on or about August 29, 1997. However, Petitioner fails to cite to any portion of the DOAH record

   containing competent substantial evidence arguably supporting this claim of a "lost and found" permit application.

   
   

   Petitioner's Qualified Representative, O. C. Allen, did testify at the final hearing concerning a purported telephone conservation he had with a former Department supervisor, Tom Moody, sometime during August of 1997. Mr. Allen testified that Mr. Moody told him at that time that the Department could not find Petitioner's application fee check. (Tr. 92-93) This testimony of Mr. Allen is a legally insufficient evidentiary basis to support a rejection of the ALJ's Finding of Fact. No 3 on several grounds:

   
   

   1. This statement purportedly made to Mr. Allen by a former Department employee who did not appear at the DOAH final hearing is obviously "hearsay" evidence. Such hearsay evidence is not sufficient to support a finding in an administrative proceeding, unless it would be admissible over objection in a civil action. See §120.57(1)(c), Florida Statutes. Petitioner does not claim in its Exceptions that the purported statement of Tom Moody in August of 1997 would be admissible over objection in a civil action.

      
      

   2. According to Mr. Allen's testimony, Tom Moody only stated in the telephone conversation that the Department could not find Petitioner's application fee "check". (Tr. 92-93) Thus, even if this hearsay statement of Mr. Moody was admissible over objection in a civil action, it would not constitute evidence that the Department had misplaced Petitioner's permit application.

      
      

   3. Assuming, arguendo, that Tom Moody's hearsay statement was deemed to be competent substantial evidence, it would only constitute testimony arguably conflicting with the contrary testimony of Jack McNulty and the supporting documentary evidence admitted at the DOAH final hearing. (Tr. 17-28, 67-78; Joint Exhibits A-1 through A-5, A-12 and A-13) A reviewing agency may not reweigh the evidence presented at a DOAH formal hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. Belleau v. Dept. of Environmental Protection, 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Maynard v. Unemployment Appeals Commission, 609 So.2d 143,145 (Fla. 4th DCA 1992). These factually related issues are evidentiary matters within the province of the administrative law judges as the triers of the facts. Heifitz v. Dept. of Business Regulation, 475 So.2d 1277,1281 (Fla. 1st DCA 1985).

In view of the above, Petitioner's Exception 8 is denied.

Exception No. 9

This Exception of Petitioner takes exception to the portion of the ALJ's Finding of Fact No. 4 asserting that by "letter dated September 26, 1997, Respondent's [Department's] representative requested additional information of Petitioner." This factual finding of the ALJ is based on competent substantial evidence of record and is adopted. (Tr. 50-51, 60-61 Joint Exhibits A-12, A-15) As noted above, it is undisputed that the permit application at issue here was prepared and submitted to the Department on behalf of Petitioner by its consulting engineer, Gary Bishop. Mr. Bishop admitted at the final hearing that he received the Department letter request for additional information and could not explain why he did not respond. (Tr.

60-61) The evidence of record also establishes that the Department sent the letter request for additional information directly to Mr. Bishop because Petitioner's address was not set forth as requested on the permit application form. (Tr. 24; Joint Ex. 15, page 4 of 31) Consequently, Petitioner's Exception

9 is denied.

Exception No. 10

Petitioner's Exception 10 takes issue with the ALJ's Finding of Fact No. 5 asserting that the "permit application fee remained unpaid at the time of [the] final hearing." This factual finding of the ALJ is based on competent substantial evidence of record and is adopted. Petitioner asserts in this Exception that "[e]vidence was submitted that the Petitioner has offered to pay the permit application fee but the Respondent has refused to accept the fee." This assertion of Petitioner is contrary to the overwhelming evidence of record in this case and is rejected. Petitioner's Qualified Representative, O. C. Allen, admitted at the final hearing that he stopped payment on the application fee check dated May 12, 1997. (Tr. 92) There is also ample evidence of record that the Department subsequently attempted to collect the $2,000.00 application fee from Petitioner, but was unsuccessful. (Joint Exhibits A-16 through

A-18, A-21, A23 through A-26)

There was some brief testimony by Mr. Allen at the final hearing of a "conditional offer to pay the $2,000.00 application fee. (Tr. 99) However, this offer was made after the Department had already issued its Notice of Denial of Permit and was conditioned on the Department issuing the permit to Petitioner. (Petition for Administrative Hearing, Ex. "1") The Department has no legal authority to accept an application processing fee subject to a condition that the requested permit be issued.

Based on the above rulings, Petitioner's Exception 10 is denied.

Exception No. 11

This Exception of Petitioner takes exception to the ALJ's Conclusion of Law No. 8. This "legal conclusion" of the ALJ consists entirely of an accurate quotation of a portion of the provisions set forth-in §403.087(6)(a), Florida Statutes. The ALJ does not make any comments on, or interpretations of, the quoted statutory provisions in this paragraph of the RO. There is no error on the part of the ALJ in accurately quoting the statutory language in question. Petitioner's Exception 11 is thus denied.

CONCLUSION

A formal hearing challenging a Department notice of denial of a permit is not merely an administrative review of prior preliminary agency action, but is a de novo proceeding intended to formulate final agency action. See, e.g., Hamilton County Commissioners v. State Dept. of Environmental Regulation, 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991). Thus, a DOAH final hearing at which an applicant is challenging a Department denial of a permit request is not restricted to the matters set forth in the application documents or in the Department's written notice of intent to deny the permit. The applicant may present additional evidence at the final hearing in support of its permit application that was not previously submitted to the Department. Hamilton County Commissioners, supra, at 1387-1388; DeCarion v.

Dept. of Environmental Regulation, 445 So. 2d 619, 621 (Fla. 1st

DCA 1984).

In this case, the ALJ correctly concluded that Petitioner's permit application was incomplete because Petitioner stopped payment on its application fee check and failed to respond to the Department's timely request for additional information. In the DOAH de novo proceeding, Petitioner could have cured these deficiencies by paying the application fee and supplying the requested additional on before the final hearing date of September 24, 1999. Petitioner, however, failed to take advantage of the opportunity in the de novo DOAH, proceeding to cure the deficiencies in its permit application. Accordingly, the subject materials recovery permit application must be denied.

It is therefore ORDERED:

1. The ALJ's Finding of Fact No. 2, is modified by inserting the phrase "employee of Petitioner's agent" in lieu of the existing phrase "Petitioner's employee". This minor

   modification is deemed to constitute a harmless error not affecting the disposition of this administrative proceeding.

   
   

2. With the minor modification in paragraph A above, the Recommended Order of the ALJ is otherwise adopted in its entirety and is incorporated herein by reference.

   
   

3. The Notice of Denial of Use of Permit previously issued to Petitioner by the Department's Northwest District Office on January 7, 1998, is affirmed.

   
   

4. Petitioner's application (DEP File No. 127844) to construct and operate a materials recovery facility in Leon County is DENIED.

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.

DONE AND ORDERED this 22nd day of December, 1999, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

for DAVID STRUHS

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

ENDNOTES

1/ A "materials recovery facility" is defined by statute as a "solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel or soil amendment, or any combination of such materials." Section 403.703(40), F.S.

2/ Both the RO and the Department's rules erroneously cite former § 120.60(2), F.S., as the current statutory reference for the application processing time requirements. The application processing time requirements of former § 120.60(2) were transferred to current §120.60(1) in the year 1996.

3/ It is undisputed that the subject materials recovery facility application was prepared and submitted to the Department on behalf of Petitioner by Gary E. Bishop, Professional Engineer. (Tr. 5051; Joint Ex. A-15)

4/ When an application is received without the required processing fee, Rule 624.050(5)(b), F.A.C., requires the Department to acknowledge receipt of the application and to "immediately notify the applicant by certified mail that the required fee was not received and advise the applicant of the correct fee." It is undisputed that the Department did not notify Petitioner by certified mail that the required processing fee of $2,000.00 was not received at the time of the attempted filing of the materials recovery facility application in March of 1997. Nevertheless, there are no provisions in Rule 62 4.050(5) requiring the Department to proceed with the processing and review of an application in the event that the specified notice is not provided to the applicant of the failure to submit the required processing fee. Moreover, the Department contends in its Response to Petitioner's Exceptions that it is not required to comply with the processing fee notification requirements of Rule 624.050(5)(b) where an application is attempted to be filed, but is not accepted for processing by the Department because the application is not properly signed by the applicant and/or verified by a professional engineer as required by law.

5/ The ALJ's findings in his Finding of Fact Nos. 2 and 3 that Petitioner's initial permit application submitted to the Department on March 17, 1997, was not accompanied by the required application fee at that time is adopted in this Final Order based on the subsequent rulings denying Petitioner's Exception Nos. 6 and 7.

6/ In Finding of Fact No. 2, the ALJ found that the initial application was hand-delivered to the Department by "Petitioner's employee" and was returned to "Petitioner's employee" due to the absence of the application fee. The testimony at the final hearing established that Petitioner's initial application was hand-delivered by an employee of Petitioner's consulting engineer, Gary Bishop. (Tr. 50-56) The fact that Gary Bishop was Petitioner's authorized agent to prepare and submit its permit application to the Department is undisputed. Accordingly, the ALJ's Finding of Fact No. 2 should be modified by

substituting the phrase "an employee of Petitioner's agent" for the existing phrase "Petitioner's employee".

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:

O.C. Allen, Jr.

Environmental Waste Recyclers, Inc. Post Office Box 10572

Tallahassee, FL 32302

Ann Cole, Clerk and

Don W. Davis, Administrative Law Judge Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 and by hand delivery to:

Martha L. Nebelsiek, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this 23rd day of December, 1999.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/488-9314

Docket for Case No: 99-001915

Orders for Case No: 99-001915