Petitioner: CHRIS ENGLERT
Respondent: ESCAMBIA COUNTY UTILITIES AUTHORITY AND DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: D. R. ALEXANDER
Agency: Department of Environmental Protection
Locations: Pensacola, Florida
Filed: Oct. 12, 2000
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Monday, December 18, 2000.
Latest Update: Jan. 26, 2001
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- STATE OF FLORIDA J “
"DEPARTMENT OF ENVIRONMENTAL prorecTioN AN 26 PMT: 53
KERRY CULLIGAN, MARY PUESCHEL )
STUDSTILL, and CHRIS ENGLERT, )
)
Petitioners, )
oe ; ) OGC CASE NOs. 00-1806
vs. ) 00-1832
) 00-1914 ~ LA
DEPARTMENT OF ENVIRONMENTAL ) DOAH CASE NOs. 00-4047 iO
PROTECTION and ESCAMBIA COUNTY ) 00-4232
UTILITIES AUTHORITY, )
)
Respondents. )
/
FINAL ORDER
An Administrative Law Judge with the Division of Administrative Hearings
("DOAH") submitted his Recommended Order of Dismissal to the Department of
Environmental Protection ("DEP") in these consolidated administrative proceedings.
The Recommended Order of Dismissal indicates that copies thereof were served upon
counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and
upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’),
and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is
attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final
agency action.
a | BACKGROUND
The Authority owns and operates a public water system in Escambia County,
Florida. These consolidated cases involve an application fi fi led with DEP seeking a
permit to construct fluoridation treatment facilities at six of the Authority’s potable water
a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit .
}
4
F
tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led
“similar petitions with DEP contesting the issuance of the permit to the Applicant and
requesting formal administrative hearings. The Petitions, which were forwarded to :
r appropriate proceedings, basically questioned the safety and effi icacy of
oe
DOAH fc
fluoridation i in their drinking water.
Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~
insuffi cient to state a cause ofa action for relief f against DEP under the controling
‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325
establishes conditions and requirements for the issuance by of permits to public oO
Bo yee
ee water systems for the installation and operation of fluoridation treatment equipment. _
sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the
wale) eh
as ed
squares sas chante és antes? CONCLUSION
The case law of Florida holds that parties to. formal administrative proceedings
‘must alert agencies to any perceived defects in DOAH hearing procedures or in the
findings of fact of administrative law judges by filing exceptions to the DOAH
recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124
(Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124
(Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that
Petitioners’ allegations were legally insufficient to state a cause of action warranting
denial of the construction permit for Applicant's proposed fluoridation treatment facilities.
Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical
adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final
order dismissing the three petitions with prejudice.
Having considered the Recommended Order of Dismissal and other matters of
record and faving | reviewed the applicable law, | concur with the rulings and ultimate
recommendation of the ALJ. Itis therefore ORDERED:
A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is
incorporated by reference herein.
- B. Culligan’s amended petition for administrative hearing and the initial petitions
for administrative hearings of Studstill and Englert are dismissed, with prejudice, for
failure to state a cause of action upon which a final order can be entered denying the
Authority’s requested permit to construct the fluoridation treatment facilities.
seals Lae
eee es
i x A a Mk ii i ie aL
C. DEP's Northwest District Office shall ISSUE to the Authority the construction
permit for the fluoridation treatment facilities, subject to the terms and conditions of the
draft permit issued in DEP File No. 0083021 -001 -WCIMA.
Any party to these proceedings has the right to seek judicial review of this Final
: pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the
Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35,
Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal
accompanied by the applicable fi iling fees with the appropriate District Court of Appeal.
The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led
; with the clerk of the Department.
-DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida.
bn STATE OF FLORIDA DEPARTMENT
. OF ENVIRONMENTAL PROTECTION
LS
DAVID B. STRUHS
Secretary
Marjory Stoneman Douglas Building
AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard
; Tallahassee, Florida 32399-3000
moun i}76lo1
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by
United States Postal Service to:
Kerry Culligan Mary Pueschel Studstill
814 North 13" Avenue 414 North Guillemard Street
Pensacola, FL 32501 Pensacola, FL 32501
Chris Englert Robert W. Kievet, Esquire
4121 West Avery Avenue Kievet, Kelly & Odom
Pensacola, FL 32501 15 West Main Street
Pensacola, FL 32401
Ann Cole, Clerk and
Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire
Division of Administrative Hearings John T. LaVia, Ill, Esquire
The DeSoto Building Landers & Parsons, P.A.
1230 Apalachee Parkway Post Office Box 271
Tallahassee, FL 32399-1550 Tallahassee, FL 32302
and by hand delivery to:
Craig D. Varn, Esquire
Department of Environmental Protection
. . 3900 Commonwealth Blvd., M.S. 35
° “~~~ Tallahassee, FL 32399-3000
this LStkd ay of January, 2001.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
: “TERRELL WILLIAMS
Assistant General Counsel
ate
) Mhea
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
“Telephone 850/488-9314
ce it 1a ea
Docket for Case No: 00-004232
Issue Date |
Proceedings |
Jan. 26, 2001 |
Final Order filed.
|
Dec. 18, 2000 |
Recommended Order of Dismissal issued. CASE CLOSED.
|
Dec. 08, 2000 |
Kerry Culligan`s Response to Motion to Dismiss Amended Petition (filed via facsimile).
|
Dec. 04, 2000 |
Order issued (hearing cancelled). )
|
Dec. 01, 2000 |
ECUA`s Notice of Cancelling Deposition filed. |
Dec. 01, 2000 |
ECUA`s Request for Continuance (filed via facsimile).
|
Nov. 27, 2000 |
Letter to Judge D. Alexander from L. Rosasco In re: floridination of the water supply filed.
|
Nov. 27, 2000 |
Notice of Filing Petitioner`s Amended Petition; Amended Petition for Administrative Hearing (filed via facsimile).
|
Nov. 27, 2000 |
Escambia County Utilities Authority`s Motion to Dismiss Culligan`s Amended Petition or, in the Alternative, Motion to Strike Portions of Culligan`s Amended Petition filed.
|
Nov. 21, 2000 |
Escambia County Utilities Authority`s Notice of Taking Deposition Duces Tecum of Kerry Culligan filed. |
Nov. 06, 2000 |
Order issued (the motions are granted, and the petitions are dismissed. Such dismissal is without prejudice to Petitioners refiling amended petitions within fifteen days from the date of this order).
|
Oct. 19, 2000 |
Order issued. (consolidated cases are: 00-004047, 00-004232)
|
Oct. 17, 2000 |
Initial Order issued. |
Oct. 12, 2000 |
Motion to Consolidate (case requested to be consolidated: 00-4047, 00-4232) filed.
|
Oct. 12, 2000 |
Petition for Administrative Hearing filed.
|
Oct. 12, 2000 |
Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
|
Oct. 10, 2000 |
Motion to Consolidate filed.
|
Orders for Case No: 00-004232