STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
HENRY BUNN
(QUALITY ONE HOUR CLEANERS)
DEP FACILITY NO. 649600568,
Petitioner,
OGC Case No. 98-2923
DEP01-1105
vs.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Respondent.
________________________________/
FINAL ORDER
A pre-hearing teleconference was conducted on August 16, 2001, by Rebecca Grace, the
presiding officer appointed by the Secretary of the Florida Department of Environmental Protection
("Department"). Jason M. Hand, counsel for the Department, and the petitioner, Mr. Henry S. Bunn,
participated in the teleconference. All parties agreed that there were no disputed issues of material
fact in this matter, that no formal evidentiary hearing was required, and that no informal hearing was
necessary. All parties agreed to submit memoranda of law setting forth their respective positions.
Petitioner had submitted his memorandum of law at the time of the pre-hearing teleconference.
Thereafter, counsel for the Department submitted memorandum of law and notice of facts, in
response to which Petitioner submitted a supplemental memorandum regarding the law, but did not
dispute the Department's notice of facts.
APPEARANCES
For Petitioner:
Henry S. Bunn
7225 Hiawassee Oak Drive
Orlando, Florida 32818
For Respondent:
Jason M. Hand, Esq.
Office of General Counsel
Florida Department of Environmental
Protection
3900 Commonwealth Boulevard, MS 35
Tallahassee, Florida 32399-3000
BACKGROUND
1. Petitioner is the owner of property located at 1351 South Volusia Avenue, Orange City,
Florida, DEP Facility Number 649600568 ("Site"). The drycleaning facility, Quality One-Hour
Cleaners, was being operated on the property at the time of Petitioner's purchase of the Site.
2. The drycleaning facility did not have secondary containment installed, as required by Section
376.3078(7)a, Florida Statutes (1997), at the time Petitioner purchased the property.
3. Petitioner closed the drycleaning facility in August 1997. At that time, the drycleaning facility
still did not have secondary containment, as required by Section 376.3078(7)a, F.S. (1997).
4. In October 1997, Petitioner filed an application for eligibility to participate in the Drycleaning
Program for the Site. See subsection 376.3078(3), F.S. (1997).
5. On August 18, 1998, the Department issued an Order Denying Eligibility for the Drycleaning
Program for the Site ("Order"). The Order gave the following reason for denying eligibility
"[p]ursuant to Section 376.3078(7)(a), Florida Statutes (F.S.), by January 1, 1997, secondary
containment must be installed around and beneath all items of equipment which utilize dry
cleaning solvents. Failure to meet this requirement constitutes gross negligence."
6. On November 8, 1998, Petitioner timely filed a Petition for Administrative Hearing challenging
the Department's ineligibility determination ("Petition") and the matter was referred to the
Division of Administrative Hearings ("DOAH").
7. On March 12, 1999, the Department filed a Motion to Relinquish Jurisdiction with DOAH,
stating that the parties agreed to the facts of the case and wished to hold an informal hearing.
8. On March 21, 1999, the Administrative Law Judge issued an Order Relinquishing Jurisdiction
to the Department.
9. On August 20, 1999, Betsy Hewitt was appointed the Informal Hearing Officer for this case.
On November 3, 2000, Rebecca Grace was appointed the Informal Hearing Officer for this
case.
CONCLUSIONS OF LAW
1. Section 376.3078(3)(a), F.S., sets forth the requirements for eligibility for the Drycleaning
Solvent Cleanup Program:
a. With regard to drycleaning facilities . . . that have operated . . . on or after October 1,
1994, any such drycleaning facility ... at which there exists contamination by
drycleaning solvents shall be eligible under this subsection regardless of when the
drycleaning contamination was discovered, provided that the drycleaning facility ...
[has not been operate in a grossly negligent manner at any time on or after November
19, 1980." § 376.2078(3)(a) and 3., F.S. (emphasis added).
2. The phrase "grossly negligent manner" is later defined in the statute in Subsection
376.3078(7)(a), F.S., (renumbered in 1998 as 376.3078(9)(a)) as "[failure to comply with the
requirements of this subsection, shall constitute gross negligence with regard to determining
site eligibility in subsection (3)." Subsection 376.3078(7)(a), FS., requires that "[o]wners or
operators of drycleaning facilities shall by January 1, 1997, install dikes or other containment
structures around each machine or item of equipment in which drycleaning solvents are used.
. ." See Sunset Square General Partnership v. DEP, OGC Case Number 98-1258, DOAH
Case Number 98-5236, Final Order dated April 16, 2000; Soap Opera Laundry and Cleaners
v. DEP, OGC Case Number 98-2371, DOAH Case Number 98-4177, Final Order dated
November 3, 1999; Kim v. DEP, OGC Case Number 98-1229, DOAH Case Number 98-2678,
Final Order #99-0477, dated June 7, 1999.
3. It is undisputed that the Site did not have dikes or other containment structures around each
machine or item of equipment in which drycleaning solvents are used (secondary
containment) by January 1, 1997.
4. Petitioner primarily argues that, as the property owner, he had good intentions and that the
equities involved should allow him to receive eligibility in the Drycleaning Program because he
was unable to compel the tenant to install secondary containment. Petitioner ultimately evicted
the tenant and closed the drycleaning business.
5. Petitioner's argument fails for three reasons. First, the statutory requirement for secondary
containment is a condition precedent to participation in the Drycleaning Program. The
condition applies to a facility regardless of the subjective intention of any specific party. There
is, for example, no requirement for willful violation of the secondary containment requirement.
See Soap Opera Conclusions of Law 60-63. Therefore, whether or not Petitioner worked
diligently to correct the situation with his tenant is not material to a determination of eligibility
under this Program's statute.
6. Second, Petitioner has not argued the elements for either of the two primary equitable legal
theories; equitable estoppel or equitable tolling. However, as Petitioner is pro se and is
generally making equitable arguments, I shall address them here. In appropriate
circumstances, principles of equity and fairness may be applied in administrative proceedings
to prevent unjust results. See Occidental Chemical Agricultural Products, Inc. v. Department
of Environmental Regulation, 501 So. 2d 674 (Fla. 1st DCA 1987).
7. "To sustain a claim of estoppel against the state or one of its subdivisions, there must be (1) a
representation as to some material fact by the party estopped ... ; (2) reliance upon the
representation by the party claiming estoppel; and (3) a change in such party's position
caused by his reliance on the representation to his detriment. Furthermore, the
[representation] on which the aggrieved party relied must be one on which he had a right to
rely."' Monroe County v. Hemisphere Equity Realty, Inc., 634 So. 2d 745, 747 (Fla. 3d DCA
1994), quoting, with approval, from Calusa Golf, Inc. v. Dade County , 426 So. 2d 1165, 1167
(Fla. 3d DCA 1983).
8. Equitable estoppel may be applied against the government only in rare instances and under
exceptional circumstances to prevent the government from taking a position, with respect to
an issue of fact, that is contrary to a position the government has previously asserted, where it
would be unfair and inequitable because of the other party's detrimental reliance on the
government's previously-asserted position to allow the government to now maintain such a
position. See Kim, Conclusion of Law No. 59.
9. In the instant case, Petitioner has not alleged that the Department made any representation
that caused Petitioner to miss the January 1, 1997, installation deadline. Without meeting this
first requirement, the remaining elements of equitable estoppel are not applicable.
10. Therefore, Petitioner has not met his burden of establishing that this is an appropriate case for
the application of equitable estoppel. See Flanigan's Enterprises, Inc. v. Barnett Bank of
Naples, 614 So. 2d 1198, 1200 (Fla. 5t' DCA 1993)("It is well established that when estoppel
is raised as a defense, the burden of proof is on the party asserting it.").
11. Likewise, the doctrine of equitable tolling cannot be applied to excuse Petitioner's failure to
install secondary containment structures by January 1, 1997. Equitable tolling is not
appropriately invoked to extend a statutory deadline. Soap Opera, Conclusion of Law No. 71;
See Vantage Healthcare Corporation v. Agency for Health Care Administration, 687 So. 2d
306 (Fla. 1st DCA 1997).
12. Finally, the Department's authority is limited by statute. Southern States Utilities v. Florida
Public Service Commission, 714 So. 2d 1046 (Fla. Ist DCA 1998). The Department does not
have authority to extend the secondary containment deadline for Petitioner or any other
applicant. See Soap Opera Conclusion of Law 63, 71; Kim Conclusion of Law 61 & 63.
13. In the instant case, it is undisputed that secondary containment was not installed at the Site.
The Site operated as a drycleaning facility without secondary containment from before
January 1, 1997, until August 1997, when the drycleaning facility was closed.
14. Pursuant to Sections 376.3078(3) and (7), F.S. (1997), the operation of a drycleaning facility
after January 1, 1997, without secondary containment constitutes operating in a grossly
negligent manner. See Soap Opera Conclusion of Law 64. Having been operated in a grossly
negligent manner, the Site does not meet the statutorily prescribed eligibility requirements for
participation in the Drycleaning Program.
15. For these reasons, I conclude that the Department acted correctly when it determined that the
Petitioner's facility was ineligible for the Drycleaning Solvent Cleanup Program because
secondary containment had not been installed by January 1, 1997. Therefore,
IT IS ORDERED: Petitioner's application for eligibility in the Drycleaning Solvent Cleanup
Program is DENIED.
DONE AND ORDERED on this 29th day of November, 2001, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
______________________________
Rebecca L. Grace
Senior Assistant General Counsel
Florida Bar No. 982547
3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000
(850) 921-9623