The Issue The issues to be determined in this case are whether Petitioner Highway 60 and 301 Center, Inc., has standing to challenge the proposed Environmental Resource Permit issued to Respondent Big Bend Center, LLC, by Respondent Southwest Florida Water Management District ("District"), and, if so, whether Big Bend Center is entitled to issuance of the proposed permit.
Findings Of Fact The Parties Petitioner owns real property located at 105 U.S. Highway 301 South, in Tampa, which Petitioner leases to commercial businesses. Respondent Big Bend Center owns real property located at 110 U.S. Highway 301 South, which is across Highway 301 from Petitioner's property. Big Bend Center is named in the District's agency action and is the permittee. The site affected by the proposed permit modification is about 2.5 acres in size. It is part of a larger development owned by Big Bend Center, encompassing about 30 acres. The 30-acre site was the subject of a permit issued by the District in 1988. The 1988 permit approved a master drainage plan applicable to all 30 acres. The permit modifications discussed herein are modifications to this initial permit. Respondent Enterprise Holdings leases the 2.5-acre site at 110 U.S. Highway 301 South, which Enterprise uses for the operation of a car and truck rental business. When Petitioner filed its petition with the District, it named Enterprise Holdings, Inc., as a Respondent, even though Enterprise Holdings was not named in the permit. Neither Petitioner nor the District ever questioned the right of Enterprise Holdings to participate as a party. Respondent Southwest Florida Water Management District is the administrative agency charged with the responsibility to administer and enforce chapter 373, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Chapter 40D. The Permit The petition for hearing challenged the District's approval of a proposed permit designated 44003983.007. The permit authorized the construction of a building over existing pavement and the addition of a dumpster pad. After the petition for hearing was filed, Big Bend Center requested and the District approved a modification, designated .008, which included the .007 changes and, in addition, authorized the construction of a section of sidewalk and landscape islands in the parking lot. Enterprise then requested and the District approved another modification, .009, which authorized all the changes addressed in .008 and, in addition, authorized changes to the paved parking lot. Standing Petitioner contends that proposed permit, modification .009, would injure Petitioner because the authorized changes would result in flooding of Highway 301 that could reach Petitioner's property or, even if it did not reach that far, would interfere with traffic on Highway 301 in a manner that would disrupt Petitioner's business. The sole factual allegation upon which Petitioner bases its claim of flooding is that the previously-installed pipes that convey runoff to a retention pond may be too small; smaller than was required by Big Bend Center's 1988 permit. Petitioner's expert, Clifford Laubstein, stated that a boundary survey in the permit file shows two 18-inch diameter pipes connected to a 24-inch diameter pipe. Big Bend Center's 1988 permit required these pipes to be 24 inches and 30 inches, respectively. Laubstein admitted that the "as built" construction drawings that were submitted to the District by Big Bend Center after the construction of the master drainage system certifies that the pipes are the required, larger size. Laubstein did not have firsthand knowledge of the size of the pipes. He did not know which document was correct, the survey or the as built drawings. His position was simply that if the survey information was correct, Big Bend Center's stormwater system would fail to function properly and flooding could occur. Laubstein did not know whether the system had failed to function properly in the past or had ever caused flooding. Laubstein did not determine what storm event or volume of runoff would result in flooding of Highway 301, or the extent of flooding that would occur under various storm events. Because as built constructions drawings are prepared by an engineer and submitted to the District for the very purpose of certifying that a system has been constructed in accordance with the requirements of the permit, information in the as built drawings about components of the system would generally be more reliable than such information in a survey that was prepared for another purpose. Furthermore, Enterprise's expert witness, Steve Boggs, measured the pipes and determined they were 24 and 30 inches, as required by the permit. By refuting Petitioner's claim that the pipes "may" be undersized, Respondents refuted Petitioner's claim that Highway 301 or Petitioner's property "may" be flooded if the proposed permit modification is issued by the District. The stormwater system for the proposed project is properly sized to handle the stormwater runoff. Petitioner failed to meet its burden to prove by a preponderance of the evidence that it could be injured by the proposed permit modification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District dismiss the petition and issue Environmental Resource Permit 44003983.009. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
Findings Of Fact Petitioners, High Point of Orlando/Calton Homes (High Point) and Breedlove, Dennis and Associates, Inc. (BDA) were among named Respondents in a petition for formal hearing filed by Central Florida Wetlands Society, Inc. (CFWS) in DOAH Case number 91-8339. High Point was a Respondent in DOAH Case number 92-0364, also initiated by a CFWS petition. BDA was retained as consultant for High Point for a project in Orange County involving wetlands and requiring the evaluation of impact and the mitigation of that impact on the wetlands. A permit for the project was granted by the St. Johns River Water Management District (SJRWMD). In late 1991 High Point requested a permit modification when it was determined that mitigation could not be accomplished within the deadlines in the permit conditions. There had been delays in planting caused in part by delays in construction of the project's stormwater management system and it was apparent that the required plantings could not grow fast enough to comply with the mitigation conditions. The technical staff report recommending approval describes the modification as extensions of the deadlines for successful establishment of forested and herbaceous mitigation. CFWS is a Florida nonprofit corporation according to its articles of incorporation filed with the Secretary of State on August 3, 1990. Article III provides these purposes for the corporation: To educate on the roll [sic] of wetlands with emphasis on the values of preservation of wetlands and the prevention of destruction of same. To implement the national policy of no loss of wetlands. To coordinate with other environmental groups to focus attention on wetland preservation. All other things that are lawful under the charter of this corporation and under the laws of the State of Florida. (Exhibit filed at DOAH 8/21/92) On October 7, 1991, CFWS filed a petition for administrative hearing with the SJRWMD in opposition to the district's proposed grant of permit modification to High Point. The petition was verified and signed by Michael W. Mingea as President of CFWS. The petition did not identify CFWS as a corporation, but rather "a not-for-profit private organization under the laws of the State of Florida". The petition named as Respondents, High Point, SJRWMD, DBA and another alleged consultant for High Point, Dyer, Riddle, Mills and Precourt, Inc., (DRMP). The petition was forwarded by SJRWMD to the DOAH for hearing on December 30, 1991, and was assigned DOAH Case number 91-8339. On January 8, 1992, CFWS filed a petition for formal administrative hearing with the SJRWMD disputing a proposed consent order between High Point and SJRWMD assessing $2,463.60 penalty and costs for violation of the mitigation conditions and requiring a mitigation survey. Like the petition described in paragraph 4, above, this petition was signed and sworn by Michael Mingea and did not identify CFWS as a corporation. The Respondent named in the petition was SJRWMD. This petition was forwarded to the DOAH by the district and was received at DOAH on January 21, 1992. It was assigned DOAH Case number 92-0364. A motion in opposition to the petition was filed on January 28, 1992 by counsel for SJRWMD requesting dismissal based on Petitioner's lack of standing, as the consent order does not authorize any activity subject to the district's permitting authority. Further, the motion argued, any issues regarding the proposed permit modification would be addressed in pending case number 91-8339. In an order dated January 28, 1992, the two cases, 91-8339 and 92-0364 were consolidated and set for hearing in Orlando, Florida on June 16 and 17, 1992. On March 5, 1992 a telephone conference hearing was conducted on various pending motions and an order was entered on March 6, 1992 granting motions to dismiss the two consultant parties, BDA and DRMP. The order denied BDA's and DRMP's motions for fees and costs pursuant to Section 120.57(1)(b)5., F.S., based on a finding that the error in including the consultants as Respondents did not rise to the level of bad faith required for an award under 120.57(1)(b)5, F.S. The order granted SJRWMD's motion in opposition to the petition in number 92-0364 and closed the file in that case with remand of the petition to the agency. And finally, the order granted High Point's motion for a more definite statement in Case number 91-8339. The order required CFWS to file its amended petition within thirty days stating how the proposed permit modifications would adversely affect the waters of the state or otherwise violate statutes and rules governing management and storage of surface waters (MSSW) permits. On April 14, 1992 Karen West, Esquire, filed her notice of appearance on behalf of CFWS and a motion for extension of time of fourteen days to file a more definite statement. On April 21, 1992 Ms. West filed the Petitioner's notice of voluntary dismissal of the petition in number 91-8339, and an order closing file was entered. On April 28, 1992, High Point and BDA filed with the SJRWMD their motion for remand which resulted in the district's order of remand discussed in the preliminary statement, above. The sole issue for remand was these Respondents' entitlement to attorneys fees and costs. High Point and BDA also filed separate motions for sanctions dated May 21, 1992 requesting fees and costs of $6,766.88 for High Point and $1,096.49 for BDA. A telephone conference was conducted on June 11, 1992 on Karen West, Esquire's, motion to withdraw as counsel for CFWS. Michael Mingea, President of CFWS participated and stated that the society had no opposition to the motion. The Hearing Officer and parties then discussed procedural matters related to resolution of the fees case, DOAH Case number 92-3010F. Mr. Mingea asked for, and was given, two weeks to obtain substitute counsel prior to Petitioners commencing discovery. The parties agreed to conduct the final hearing by telephone on August 10, 1992. An order and notice of hearing was entered confirming these matters on June 17, 1992. Notwithstanding the parties' agreement, the August 10th hearing was continued because Petitioners were unable to effectuate discovery or serve subpoenas on Michael Mingea or Todd Swearingen, another CFWS board member. Despite frequent filings of well-drafted requests for extensions, responses to Petitioners' pleadings and similar documents, Michael Mingea never appeared at any of the several hearings scheduled in this case after his initial appearance on June 11th. Despite several explicit orders Mr. Mingea never appeared for deposition by Petitioners, either in person or by telephone. Yet, according to the testimony of other board members, Todd Swearingen and Marty Sharpe, only Michael Mingea initiated the petitions involving High Point and he, alone, was cognizant of the specific basis for those petitions. Marty Sharpe who appeared consistently on behalf of CFWS in this proceeding became a board member in February 1992, several months after the petitions were filed. Petitioners were wholly frustrated in their effort to obtain the discovery to which they were entitled with regard to the bases for the CFWS petition in Case number 92-8339 and its abrupt dismissal. In various written documents and attempts to provide evidence through affidavit CFWS argues that its motives were not bad faith; however, throughout this proceeding CFWS has effectively prevented Petitioners from testing those bare assertions through discovery or cross examination. Mr. Mingea apparently travels extensively with his regular employment and the organization's mail goes to a post office box where it is picked up by volunteers. Contact with the organization was most effectively made through Marty Sharpe who attempted, in turn, to reach Mr. Mingea and convey messages. In the absence of competent evidence to the contrary, the record in this and in the underlying cases, number 91-8339 and 92-0364 support a reasonable inference that the petition in number 91-8339 was filed for a frivolous purpose. The order granting CFWS leave to amend its petition acknowledged that the original petition was legally insufficient. The petition was not amended within the allotted period; but rather was voluntarily dismissed shortly after legal counsel appeared on behalf of the organization. This dismissal reduces, but does not eliminate exposure to liability for filing the initial petition. The fees and costs requested by the Petitioners here are reasonable. Those fees are supported by billing logs attached to the motions for sanctions and reflect an hourly rate of $100.00 for BDA and $160.00 for High Point. Douglas Rillstone testified to the reasonableness of a total of $9,592.00 for High Point, and $2,495.00 for BDA. Those totals are not supported by billing logs and it is not possible to determine the basis for those amounts beyond the original amounts requested.
Findings Of Fact This cause comes on for consideration based upon the First Amended Petition by Capeletti Brothers, Inc., to determine the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, and is presented pursuant to Section 120.56, Florida Statutes. The First Amended Petition also makes allegations concerning the validity of an alleged rule purportedly found in the Notice of Intent to Deny the permit dated October 16, 1978; however, this statement is considered and ruled upon in the companion case, D.O.A.H. Case No. 79-1440R. The reason for this procedural disposition is due to the fact that the original Petition only contains allegations concerning the Letter of Intent to Deny of March 26, 1979, and any attempt on the part of the Petitioner to amend the Petition to include additional rules or purported rules that were not the subject of the original Petition was not deemed appropriate and, consequently, the attack on the validity of Rules 17-4.02 and 17-4.28, Florida Administrative Cede, was allowed to go forward only through an independent case consideration which is the case D.O.A.H. 79-1602RX. This approach was adopted to accommodate the notice requirements of Section 120.56, Florida Statutes. In summary, the document entitled "First Amended Petition" has been divided into two cases, D.O.A.H. Case No. 79-1440R dealing with the Letter of Intent to Deny of March 26, 1979, and D.O.A.H. Case No. 79-1602RX dealing with the challenge to Rules 17-4.02 and 17- 4.28, Florida Administrative Code. (The evidential facts and certain related legal conclusions involved in considering the case sub judice, have been the subject of an Order of the undersigned in D.O.A.H. Case 79-891 involving the same parties to this cause, and the evidential fact determinations and legal conclusions in that Order dated December 7, 1979, are hereby incorporated into this Order by reference and through the act of attaching a copy of the prior Order are made a part of the present Order.)
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.
The Issue The issue is whether proposed rule 62-160.300(5)(c) is an invalid exercise of delegated legislative authority, as alleged in the Amended Petition for Rule Challenge (Petition) filed on October 17, 2017.
Findings Of Fact Background The Department is the agency charged with the responsibility of adopting quality assurance rules for the collection and analysis of water quality data submitted to the Department. § 403.0623(1), Fla. Stat. These standards have been codified in chapter 62-160. They are designed to "assure that chemical, physical, biological, microbiological and toxicological data used by the Department are appropriate and reliable, and are collected and analyzed by scientifically sound procedures." Fla. Admin. Code R. 62-160.110(1). Part III of chapter 62-160 addresses laboratory certification and procedures. The Legislature has mandated that when water quality data are used to determine the quality of drinking water or the effluent of a domestic wastewater facility, all laboratories generating such data for submission to the Department must hold certification from the Department of Health (DOH) under the Department of Health, Environmental Laboratory Certification Program (DOH ELCP). See §§ 403.863(7) and 403.0625(2), Fla. Stat. Although DOH is the state's environmental laboratory accreditation program body, the Department has rulemaking authority to determine what types of laboratory data require DOH ELCP certification. § 403.0623, Fla. Stat. Not every laboratory test requires certification for the Department to accept the resulting data. Certified laboratories must have approved Standard Operating Procedures (SOPs), a formalized, written set of instructions which are followed for sample collection and preservation. The SOPs are reviewed by the Department to ensure they provide sufficient laboratory quality assurance. Petitioners are among the more than 100 laboratories in the state that fall within the class of laboratories that must meet DOH ELCP certification standards. They provide testing services primarily for local governments, consultants, and commercial accounts. Petitioners take pride in the fact that they meet all federal and state standards for testing, their laboratories are owned and managed by professionals, and they have been successfully performing these services for decades. The dispute here centers on proposed rule 62- 160.300(5)(c), which allows non-certified "statutorily created volunteer monitoring organizations" to submit water quality data to the Department for certain purposes. Petitioners, who are in the business of generating environmental data to the Department, allege that if they are required to compete with a non-certified laboratory, it will "directly affect their ability to earn a living and will interfere with their contractual relationships." Currently, the only statutorily created volunteer monitoring organization in the state is the Florida LAKEWATCH Program (Lakewatch), an organization created in 2002 within the Department of Fisheries and Aquaculture of the Institute of Food and Agricultural Sciences (IFAS) at the University of Florida. See § 1004.49, Fla. Stat. Petitioners' Operations Florida-Spectrum, located in south Florida, spends around $100,000 annually to keep its five laboratories properly certified. Around a third of its business is testing for municipalities, a third for industries (such as investor-owned utilities), and a third for consultants. It performs lake water sampling for three cities for the purpose of compliance monitoring, but the proposed rule does not allow a non-certified laboratory to submit data to the Department for this purpose. Flowers, located in the greater Orlando area, estimated its annual direct cost to remain certified is around $52,000.00. It provides testing services primarily for domestic waste water effluent and drinking water. Only five percent of its testing is in lakes. Although Benchmark did not provide its annual cost to be certified, more than likely it incurs a similar expense, as it performs water testing primarily for engineering firms and municipalities located along the west coast from Tampa to Naples. A very small percentage of work involves testing in lakes to determine compliance with drinking water standards. The Proposed Rule Existing rule 62-160.300(5)(e), in effect since 2002, allows the Department to waive the certification requirement for an entity that uses "[m]ethods approved for site-specific, limited-use purpose if such certification is specifically waived by the Department program for which the method will be used." The provision has rarely been used, and then "usually only [for] research projects directly funded by DEP." Pet'r Ex. 14, p. 2. The Department proposes to substantially revise existing rule 62-160.300, entitled Laboratory Certification, by adding new text, deleting language, and renumbering the revised provisions. Although the Notice proposed only a minor change to existing rule 62-160.300(5)(e), the Notice of Change deletes that provision in its entirety and proposes to adopt new rule 62-160.300(5)(c), which allows the Department to consider and use data generated by non-certified "statutorily created volunteer monitoring organizations." New paragraph (5)(c) provides that certification is not required for the following tests or analyses: (c) Methods used by statutorily created volunteer monitoring organizations, when the Department has reviewed and concluded that the organization's Standard Operating Procedures provide sufficient quality assurance requirements for Department purposes. The rule is designed to apply to an organization with a very small laboratory and a single purpose. Lakewatch's only purpose is to sample water quality in lakes, with an emphasis on total nitrogen, phosphorus, chlorophyll a, and water clarity. The IFAS laboratory has only "a couple of career staff." Lakewatch performs no sampling for municipalities, commercial accounts, or other entities typically served by certified laboratories. Section 1004.49 authorizes Lakewatch to "[t]rain, supervise, and coordinate volunteers to collect water quality data from Florida's lakes" and to "[c]ompile the data collected by volunteers." The organization consists of citizen volunteers (almost 1,500 as of May 2014), mainly lake residents, who take and hold water samples and then send them to be analyzed by the IFAS laboratory. The results are collected and maintained in a Lakewatch database coordinated by the IFAS. The testing results are forwarded to the Department for inclusion in various databanks. In somewhat unclear terms, a Department witness explained that the purpose of the rule is "to do routine housekeeping for aspects of the rule that [the Department] thought needed revising based on stakeholder input from all sectors." However, the Notice further explains that the new rule "provide[s] increased flexibility for approval of alternative methods," and it "clarif[ies] when [DOH] laboratory certification is not required, because substitute quality assurance requirements will apply." In addition, the Department points out that it has the responsibility of assessing all waters in the State, but lacks the resources to perform this task. At any one time, the Department estimates that Lakewatch is sampling the water in over 100 lakes, many of which are in remote areas that are not accessed by other laboratories. The acceptance of Lakewatch data will fill a gap in the Department's assessment role. Even when data are of lesser quality, they can be valid for some purposes. As a general rule, it is helpful for the Department to maximize the data available for review. Does the Rule Exceed the Grant of Rulemaking Authority? The Notice cites as rulemaking authority four statutes, including sections 403.0623 and 403.0625. Section 403.0623(2) authorizes the Department to "establish standards for the collection and analysis of water quantity, water quality, and related data to ensure quality, reliability, and validity of the data and testing results" and "to adopt rules to implement this subsection." Section 403.0625(1) authorizes the Department and DOH to "jointly establish criteria for certification of laboratories that perform analyses of environmental samples that are not covered by the provisions in s. 403.863." Petitioners allege the new rule exceeds the grant of rulemaking authority in section 403.0625(1) because the DOH did not participate in the drafting of the regulation. Because the rule does not create any standards for laboratory certification, DOH input is not required. The Department's routine practice is to informally collaborate with DOH only for issues that are specific to test methodology or topics related to DOH's scope of certification for environmental test methods. Petitioners also contend the rule exceeds the grant of authority in section 403.0625(2), which provides that only certified laboratories may submit water quality data to determine "the quality of the effluent of a domestic wastewater facility." However, this contention has been treated as an argument that the rule contravenes the statute and is addressed in the following section of this Recommended Order. Does the Rule Contravene the Law Being Implemented? The Notice states that the revisions to chapter 62-160 implement more than 20 statutes, including sections 403.0623 and 403.0625. At hearing, Petitioners asserted that Lakewatch volunteers have sampled water in the St. Johns River, which has package plants that impact both the river and the Green Swamp. They did not disclose the extent of such sampling in the river, and, its purpose. Petitioners incorrectly assume the purpose of the rule is to allow Lakewatch to continue to submit data from areas affected by domestic wastewater effluent, in violation of section 403.0625(2). Assuming that river samples were submitted to the Department, the proposed rule does not legitimize the submission of data for that purpose. Petitioners contend the proposed rule will contravene other Department rules which set general requirements for collection and laboratory methods, including minimum holding times. However, the proposed rule authorizes the Department to approve an alternate method or procedure for some methods used by the organization. Therefore, Lakewatch does not follow generally approved requirements for sample preservation. Rather, it follows approved alternate methods evaluated and approved by the Department. Likewise, Lakewatch relies on an approved limited-use method for chlorophyll extraction, rather than following the typical methods used by certified laboratories. Vagueness, Lack of Standards, and Unbridled Discretion The proposed rule requires an organization's data to be of "sufficient quality assurance" to meet Department purposes. Petitioners argue that by simply using the word "sufficient," rather than mandating that the data be "accurate and reliable," the rule gives the Department unbridled discretion in determining what level of assurance is required. However, this is a distinction without a difference. The Department's determination will be based on whether the laboratory procedures conform to the use of approved methods, sample preservation procedures, and recordkeeping and reporting procedures. See Pet'r Ex. 18. The Department will also consider whether the organization has the ability to produce valid data that can withstand scrutiny under the criteria in rule 62-160.670. Id. Depending on the purpose of the data, criteria in other rules will be applied to the approval of methods and acceptance of data. See, e.g., Fla. Admin. Code R. 62-160.330 and 62-160.670. In those instances when certification is not required, new rule 62-160.300(9) requires that the organization's laboratory "follow the relevant Department-approved methods as provided in Rule 62-160.320, F.A.C., and shall meet all other requirements for laboratories as provided in this Chapter." Coupled with the challenged rule, this change sets a floor for quality assurance in uncertified laboratories with approved SOPs. Therefore, a non-certified laboratory must have minimum requirements for method detection limits, reporting and documentation, preservation of samples, data validation, and procedures for coding data that do not meet quality control criteria. Given the different purposes for which data are submitted, and the variability of data quality objectives that must be achieved, the Department must necessarily have some level of flexibility and discretion. It would be impractical to include in the rule every potential circumstance that might arise during this assessment. In sum, the record supports a finding that there are adequate and definitive standards in place to ensure that the operating procedures of a non-certified laboratory are sufficiently reliable for the Department to accept the data. Use of Lakewatch Data Section 1004.49 provides that "[d]ata collected and compiled [by Lakewatch] shall be used to establish trends and provide general background information and shall in no instance be used in a regulatory proceeding." However, the term "regulatory proceeding" is not defined. Even though the law is almost 16 years old, the Department has not yet taken a formal position on how the term should be interpreted and generally decides this issue on a case-by-case basis. While the Department admits that the undefined term is a source of confusion, its practice is to never use Lakewatch data for enforcement action or permit compliance. On the other hand, the Department says the statute is "unclear" on whether Lakewatch data can be used for ambient water quality assessments and restoration plans, such as water listings and Total Maximum Daily Loads. Therefore, Lakewatch data have been used for trend analysis, background information, agency resource allocation, and the compilation of the planning list under the Impaired Waters Rule. The Department does not consider these uses to violate the statutory proscription. From 2013 until August 2017, the Department used Lakewatch data for some purposes that may have been inconsistent with section 1004.49. However, that practice has ceased, and the Department now uses Lakewatch data in a manner that it believes is consistent with the statutory directive. Petitioners argue that the improper use of data during the five- year period, by itself, is a sufficient basis to invalidate the rule. This contention is rejected. After a comparability study of Lakewatch and Department data was conducted by the Department in 2011-2012, the Department initiated a review of the Lakewatch SOPs. The SOPs have been periodically revised, the last time in 2016, to incorporate certain quality control measures recommended by the Department. Although Petitioners contend otherwise, the SOPs provide sufficient laboratory quality assurance for accepting data for trend analysis, setting priorities on monitoring plans, and general information. Petitioners' Substantial Interests Petitioners are concerned the Legislature will create other volunteer organizations and this will result in multiple organizations taking advantage of the new rule. They also fear the Department will amend the new rule to allow other non- certified organizations to submit data. These concerns are speculative in nature and without evidentiary support. Because Lakewatch services are free, Petitioners contend their customers will use Lakewatch volunteers rather than paying a certified laboratory for testing services. However, Petitioners did not identify any "contractual relationship" that will be interfered with by virtue of the rule, any existing customer that will move its business to Lakewatch, or more importantly, the percentage of their work, if any, that coincides with work being performed by the volunteer organization. In sum, the evidence does not support a finding that Lakewatch volunteers will compete for the services now provided by Petitioners, who pay substantial fees each year to remain certified. Petitioners posit that if the proposed rule is adopted, the term "regulatory proceeding" will be applied in such a way as to allow Lakewatch data to be accepted and used for a wide range of testing purposes, including regulatory proceedings. But this assumption is based on speculation, and current law prohibits the rule being applied in this manner. If Petitioners disagree with how the rule is applied, there are other remedies in chapter 120, including a requirement that a point of entry be given to third parties when an agency order is involved. The fact that Petitioners may not be notified every time the Department uses data from a volunteer monitoring organization is not a ground for invalidating the rule. Most of Petitioners' evidence at hearing questioned the reliability and accuracy of testing services by Lakewatch. Among other things, Petitioners contend Lakewatch uses volunteers with limited training and experience, its collection and preservation methods do not conform to acceptable professional standards, the Department has never audited the Lakewatch laboratory, and a 2011-2012 comparability study of Lakewatch data with Department data is flawed in many respects. To determine the validity of the rule, however, more on that story need not be told at this time.
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
The Issue The issues presented are whether Respondent failed to maintain sewage drains and to prevent the presence of roaches in violation of Food Code Rules 5-402.13 and 6-501.111, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 3912699, and is located at 1235 Hillsborough Avenue, Tampa, Florida. A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on March 15, 2006. Respondent committed two violations. One violation involved waste water sewage, and the other involved roaches. Waste water sewage backed up into the mop sink in the floor drain in the dishwashing room. Waste water also backed up in the kitchen hand sink drain. Eight roaches were present in a shelf, and 10 roaches were clustered in cracks in a pipe. Another roach crawled out from behind the kitchen stove. The deficiencies were significant violations. Petitioner issued an emergency order closing the restaurant. Respondent corrected the offenses in one day. There is no evidence the violations are continuing. Respondent submitted credible and persuasive evidence of diligent efforts to maintain the restaurant in proper condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in the Administrative Complaint and imposing a fine of $1,000, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 1st day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2006. COPIES FURNISHED: Maria B. Vences Los Tucanes 1235 East Hillsborough Avenue Tampa, Florida 33604 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 George Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
