STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION JERRY P. POTTER, Petitioner, OS" OGC Case No. 05-2792 vs. DOAH Case No. 06-1474 DEPARTMENT OF ENVIRONMENTAL , r PROTECTION and MONTE KENEDY, Respondents. / FINAL ORDER On November 13, 2006, an administrative law judge (“ ALJ”) from the Division of Administrative Hearings (“DOAH”) submitted his Order Closing File to the Department of Environmental Protection (“DEP” or “Department”), a copy of which is attached as Exhibit A. The Order Closing File relinquished jurisdiction of the proceeding back to the Department and indicates that copies were served upon counsel for DEP, co-respondent Monte Kennedy (“Kennedy”), and the Petitioner, Jerry P. Potter (“Potter”). Potter filed exceptions on November 29, 2006 and amended exceptions on December 12, 2006 and DEP filed responses. The matter is now before DEP for entry of a final order. BACKGROUND In December 2005, the Department and Kennedy entered a consent order to resolve a violation on Kennedy’s property in Key Largo, Florida, in which he filled approximately 377.51 square feet of wetlands without a permit. In the consent order, DEP ordered Kennedy to restore the property by removing any fill that was waterward 1 of the restoration line and re-grading the property to the natural grade that existed before the violation. Prior to conducting the restoration, Kennedy was required to stake the restoration line and ensure that turbidity barriers were installed and side slopes were stabilized.to prevent erosion, siltation, or turbid run-off. Upon completion, Kennedy was required to notify the Department in writing and provide photographs and a plan view drawing depicting the completed work. In addition, Kennedy was required to pay $770.00 to the Keys Environmental Restoration Fund as mitigation for the impacts, and $4,000.00 in civil penalties and $500.00 in costs and expenses to the Department. . Potter, who lives adjacent to Kennedy, timely filed a Petition for Formal Administrative Hearing (“Petition”), in which he raised six issues with the consent order: (a) it does not require Kennedy to restore the property to the “actual location and conditions prior to” the violation; (b) it does not adequately control erosion or pollution of the water during restoration; (c) by failing to restore the property to the pre-existing shoreline, Kennedy will be able to build a pool, pool enclosures, a dock, and boat lift closer to the water than he otherwise would have been allowed; (d) Potter's view of water will be impaired by the construction of these structures; (e) the adjacent waters will be impaired; and (f) Potter’s property value will be diminished. The Department forwarded the petition to DOAH, and Administrative Law Judge Donald R. Alexander (the “ALJ”) was assigned to the case. This is the second time this case has come before the Department for final agency action. On August 18, 2006, DEP filed a Motion to Dismiss or in the Alternative to Relinquish Jurisdiction alleging the Petition raised no material facts in dispute. On 2 August 29, 2006, the ALJ entered an Order Relinquishing Jurisdiction that found Potter did not have standing because he failed to raise any disputed material facts in the Petition. Although Potter had filed an Emergency Motion for Extension of Time to ‘respond to DEP’s motion, his motion was received by DOAH after the order was entered and was not considered by the ALJ. Potter timely filed exceptions with DEP alleging that the order had been prematurely entered. Based on the record, the Department determined that Potter was legitimately confused about whether he was entitled to add five days to the deadline for filing a response to DEP’s motion, and therefore remanded the case back to DOAH, which accepted the remand and reopened the case on October 23, 2006. On August 29, 2006, Potter had served Petitioner’s Suggestion or Motion for Recusal or Disqualification of Administrative Law Judge alleging that the ALJ was biased against him. Most of the grounds raised by Potter concerned adverse rulings by the ALJ on discovery and pre-hearing matters. The motion was not received by DOAH before the case was closed on August 29, 2006. However, upon remand Potter renewed his motion for recusal, which the ALJ denied by order dated October 26, 2006. -On October 18, 2006, Potter filed an Amended Motion for Extension of Time to Respond to: Respondent’s Motion to Dismiss or in the Alternative to Relinquish Jurisdiction, in which he requested an additional ten days to respond. On October 26, 2006, the AL} granted Potter’s motion stating “ As requested in the Amended Motion, Petitioner shall have ten days from the date of this Order in which to file a response.” (Emphasis supplied.) Potter’s response was due on November 6, 2006, which was 10 days after the date of the October 26, 2006, Order. 3 Having received no response or further request for extension of time from Potter by November 6, 2006, the ALJ entered an Order Closing File on November 13, 2006, in which he reaffirmed his earlier Order Relinquishing Jurisdiction entered August 29, 2006. Rather than file a response to DEP’s motion, Potter filed a Motion for Reconsideration of Order Denying Petitioner’s Suggestion And/Or Motion for Recusal or Disqualification of Administrative Law Judge on November. 13, 2006, which was apparently received by DOAH on the afternoon of the 13, after the case was already closed and jurisdiction relinquished to the Department. Potter’s Motion for Reconsideration raised the denial of Potter's initial motion for recusal as additional evidence of bias and requested that the case be stayed until the renewed motion was disposed of. Because the case had already been closed and jurisdiction relinquished to the Department, Potter’s motion for reconsideration was not considered by the ALJ. The Order Closing File adopted into the August 29, 2006 Order Relinquishing Jurisdiction, which reviewed the six grounds in the Petition that comprised Potter's reasons for challenging the Consent Order. The record before the ALJ included the Consent Order, Petition, Potter’s deposition, and Potter’s answers to two Sets of interrogatories. It appeared from Potter’s deposition that the work required in the consent order has been already completed and that his concerns stemmed from his assertions that the work was not done properly. } Because the Order Closing File contains factual findings concerning Potter’s deposition testimony and related legal conclusions by the ALJ, it is treated in this Final Order as a recommended order of dismissal. The parties were given an opportunity to file exceptions. On November 29, 2006, Potter filed timely exceptions to Order 4 Relinquishing Jurisdiction by ALJ. On December 12, 2006, Potter untimely filed amended exceptions. On December 11, 2006, DEP filed a response to Potter's timely filed exceptions. _ On December 29, 2006, Potter filed a Motion to Recuse Newly Appointed Secretary Michael Sole from Adopting and/or Ruling on the ALJ’s Order. The matter is now before the Department for entry of a Final Order. RULING ON PETITIONER'S MOTION TO RECUSE DEP SECRETARY In his motion to recuse DEP’s Secretary, Potter alleges that he discussed his concerns with the Consent Order with Secretary Sole on January 20, 2006, while he was “Deputy Director, Chief of Staff” to former Secretary Colleen Castille. Potter describes a 40 minute phone conversation at which he asserts that he discussed “everything in this instant Consent Order case and the Boat Lift case.” Subsequent attempts by Potter to meet or further discuss the case with Mr. Sole were unsuccessful. During discovery in the administrative litigation, Potter attempted to subpoena Deputy Secretary Sole, but DEP successfully moved to quash the subpoena, based upon an affidavit in which the Deputy Secretary stated that he was not personally involved in the investigation or processing of the Consent Order, had no personal knowledge of the facts or circumstances, and could offer no testimony that would tend to prove or disprove any fact contested by Potter. Section 120.665, Florida Statutes, establishes the statutory grounds for recusal of an agency head in an administrative proceeding under the Administrative Procedure Act. That statute provides in pertinent part that “any individual serving alone or with others as an agency head may be disqualified from serving in an agency proceeding for 5 bias, prejudice, or interest when any party to the agency proceeding shows just cause by a suggestion filed within a reasonable period of time prior to the agency proceeding.” Potter does not suggest that the Secretary Sole has a proprietary interest in this case and, thus, must be arguing that there is bias or prejudice against him, for reasons that are not clearly articulated in the Motion. The question then is whether the motion makes a legally sufficient showing of bias or prejudice, ie., “whether the facts alleged would prompt a reasonably prudent person to fear that they will not obtain a fair or impartial hearing.” Charlotte County, et. al. v. IMC- Phosphates Company, et al., 824 So.2d 298, 300 (Fla. 1st DCA 2002). The standards for disqualification of a judge ina court proceeding differ substantially from those under Section 120.665, Florida Statutes, because "agency heads have significantly different functions and duties than do judges." Bay Bank & Trust Company v. Lewis, 634 So.2d 672, 678-679 (Fla. Ist DCA 1994). Florida case law holds that an agency head may participate in the preliminary agency investigative process prior to the initiation of a formal administrative proceeding without being disqualified from entering a subsequent agency final order, and an agency head may play many roles in a dispute, such as investigator or prosecutor, which will not automatically disqualify him as biased or prejudiced under Section 120.665, Florida Statutes. Putnam County Environmental Council, Inc. v. Department of Environmental Protection, 2002 Fla. Env. Lexis 197 (Fla. DEP 2002). The motion to recuse is denied for the reason that Potter has not established a well-grounded fear of bias or prejudice, as Secretary Sole’s only interaction with Potter occurred during DEP’s investigation of this matter, before he filed his Petition.’ RULING ON PETITIONER’S EXCEPTIONS FILED NOVEMBER 29, 2006 Potter’s exceptions, which by and large attempt to explain his failure to timely file a response to DEP’s motion to dismiss and his reasons for missing the November 6, 2006, deadline, ask the Department to remand the case back to DOAH for the initial | purpose of allowing the AL] to rule on Potter’s motion for reconsideration of his motion to recuse the ALJ. However, unlike the events that led to the earlier Order of Remand, which concerned legitimate confusion about the timing of filing a response, Potter had . clear directions from the ALJ regarding what to file and the filing deadline. For the following reasons, the Department declines Potter’s request to remand the case. In his exceptions, Potter explains that he received the AL]’s Order Granting Extension of Time, which required Potter to file his responses within 10 days, and assumed he could add five days for mailing and three more days due to the Veteran’s Day holiday on November 10, 2006, before his response was due. The DOAH case file had already been closed when he filed both his motion for reconsideration of his motion to recuse the ALJ and his response to DEP’s motion to dismiss on November 13, 2006. Potter’s confusion arises from the difference between “filing” and “serving” a response, and although he correctly recites that the ALJ’s Order Granting Extension of Time requires that Potter’s response be filed (see page 7 of Potter’s Exceptions), he did not follow that directive. Florida jurisprudence clearly differentiates between filing and serving documents, and the rules governing additional time for mailing do not apply to a document that a judge directs must be filed, as opposed to served, by a date certain. Horvath v. Horvath, 894 So.2d 649 (Fla. 4t DCA 2005). Potter is not excused from complying with an unambiguous filing deadline because he believed he should be 7 entitled to extra time in which to file a response. Rowe v. Sea Ray Boats, Inc., and Department of Environmental Protection, 00 ER FALR 316 (Fla. DEP 2000). Although Potter is proceeding pro se, a suggestion that a lay person should be held to a lesser standard of conduct than a licensed attorney in a formal administrative proceeding has been rejected by the appellate courts of this state. See Burke v. Harbor Estates Associates, Inc., 591 So.2d 1034 (Fla. Ist DCA 1991). In the Burke opinion, the court ruled that § 120.62(2), F.S., permitting qualified lay representatives to represent parties in administrative proceedings, "provides no basis for holding such representatives to a lesser standard of conduct." Id. at 1037. The Burke court observed that "fal contrary rule would permit a party to insulate itself from the consequences of § 120.59(6), F.S. (1989), by choosing lay representation." n4 Id. at 1037-38. Potter urges this case be remanded to DOAH so that his motion to reconsider the motion to recuse the ALJ can be decided before he is required to respond to the Department’s motion to dismiss. However, Potter cannot direct or decide how the case should proceed. Once Potter failed to file a response to DEP’s motion to dismiss, the AL] was justified in deciding the motion without further delay. Zarco v. Department of Environmental Protection, 97 ER FALR 27 (Fla. DEP 1996). Thus, for the foregoing reasons, Potter’s exceptions are denied and the request for remand to DOAH is declined. POTTER’S AMENDED EXCEPTIONS FILED DECEMBER 12, 2006 Potter's amended exceptions were untimely filed 13 days after the date for filing exceptions that was provided to the parties. The amended exceptions request that the case be remanded, a criminal investigation be commenced against Kennedy, and a 8 former DEP employee be sanctioned. Potter claims the amended exceptions were filed late because of a power failure, printer malfunction, and mangled documents; however, Potter filed no motion requesting additional time to file exceptions, and as such his amended exceptions are untimely. Regardless of his explanation there are no provisions in Florida law allowing the Department to accept untimely filed amended exceptions absent a motion and subsequent order authorizing the late filing. Thus, the amended exceptions are untimely and will not be considered. Finally, even if the allegations in Potter’s Amended Exceptions could be appropriately considered, they are irrelevant to the issues before the Department, and they cannot provide any grounds to evaluate DEP’s argument and evidence that demonstrates Potter is not substantially affected by the Consent Order in ways that would give him the standing to challenge that Order. Having considered the ALJ’s Order Closing File, the exceptions filed by Potter, and the applicable law, it is concluded that the factual findings, legal conclusions, and recommendations of the AL] are correct. It is therefore ORDERED: A. The Order Closing File is adopted in its entirety and is incorporated herein by reference. B. The petition filed by Petitioner is dismissed for failure to allege standing. C. Consent Order No. 05.2792 is hereby final. 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, 9 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 {2-day of February 2007, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION ‘Michael W. Sole a Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED. ee Leanidall Lalo 10 CERTIFICATE OF SERVICE THEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Jerry P. Potter Monte Kennedy 29 North Largo Lane 31 North Boundary Lane Key Largo, FL 33037 . Key Largo, FL 33037 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL, 32399-1550. and by hand delivery to: Alissa Blank, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 thist 3 day of February, 2007. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION BP pg O— fcr DAVID K. THULMAN Assistant General Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242 . 11

Docket for Case No: 06-001474

Orders for Case No: 06-001474