STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTON COUNTY AND W. L. BILLY ) MCLEAN, )

)

Petitioner, )

)

vs. ) CASE NO. 82-132

) 82-193

MR AND MRS ROBERT COLE, MR AND ) MRS JOHN. H. CAMPBELL, MR AND ) MRS W. J. GORDY, MRS BECKY BEATTY ) MRS BEVERLY HOWELL, DR AND MRS ) EDWIN WILLIAMS, AND MR M. O. ) WARREN, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in DeFuniak Springs, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on June 23, 1982. The parties were represented by counsel:

APPEARANCES

For Petitioner George Ralph Miller, Esquire Walton County: Post Office Box 687

DeFuniak Springs, Florida 32433

For Petitioner W. Dennis Brannon, Esquire Billy Mclean: Post Office Box 1503

Fort Walton Beach, Florida 32549

For Respondent: Deborah A. Getzoff, Esquire

3900 Commonwealth Boulevard

Tallahassee, Florida 32303

For Intervenors: M. Stephen Turner, Esquire

Post Office Drawer 591 Tallahassee, Florida 32303

In response to DNR's "Final Order," both Walton County (Case No. 82-132) and W. L. "Billy" McLean (Case No. 82-193) petitioner petioned for administrative hearings. With the concurrence of all parties, these two cases have been consolidated for all purposes.

In a proposed final order, respondent Department of Natural Resources (DNR) recited findings of fact, which have served as allegations in the present proceedings. With minor amendments allowed at the hearing, DNR has alleged:

1. On September 10, 1981, a staff inspection of portions of a county-owned road right-of-way located approximately 550' east of Department of Natural Re- sources range monument R-90, east of Sea- grove Beach, Walton County, Florida, revealed recent deposition of clay and gravel onto the ground seaward of the coastal construction control line. A staff investigation revealed that the roadway was constructed by William L. McLean, Walton County Commissioner, using county-owned work forces and equipment.

   An examination of the records of the Bureau of Beaches and Shores of the Department of Natural Resources indicated no permit from the Department of Natural Resources had been issued for this activity.

2. On September 21, 1981, the Bureau

   of Beaches and Shores of the Department of Natural Resources notified the Walton County Board of Commissioners in writing that the activity constituted a violation of Chapter 161.053, Florida Statutes, and/or the imple- menting rules thereof.

3. On September 21, 1981, the Bureau

   of Beaches and Shores of the Department of Natural Resources notified the Walton County Board of Commissioners in writing to cease any further unauthorized activity seaward

   of the coastal construction control line. All work seaward of the coastal construc- tion control line stopped and no further work has been undertaken.

4. On September 28, 1981, the Bureau

   of Beaches and Shores of the Department of Natural Resources mailed a permit applica- tion form to Walton County officials.

5. On October 30, 1981, the Executive Director of the Department of Natural Resources granted Walton County officials

   30 days to submit a completed application for an after-the-fact permit.

6. On November 5, 1981, the Executive Director of the Department of Natural Resources notified William L. McLean in writing that based on the staff's investi- gation, and his own public admissions, the Department of Natural Resources holds him, William L. McLean, individually responsible for the violation that had occurred.

7. The 30 day time period for the submittal of an after-the-fact permit appli- cation expired on December 2, 1981, and as of December 7, 1981, no application had been received and no extention [sic] had been granted.

8. That as a public official and a

County Commissioner, William L. McLean knew, or should have known, that his actions were a violation of Chapter 161, Florida Statutes.

A final paragraph was abandoned at the beginning of the hearing, and the parties stipulated to paragraphs one through seven. The issues remaining are whether certain road-building activities amounted to construction of a new road or to maintenance of an old road; and what responsibility W. L. "Billy" McLean might have in the matter, personally or as an agent of Walton County.

FINDINGS OF FACT

1. Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however.

   
   

2. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens.

   
   

   FIRST ROAD BUILT

   
   

3. Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way.

   
   

   UPLAND SEGMENT PERMANENT

   
   

4. The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road.

   
   

   BEACH SEGMENTS EVANESCENT

   
   

5. Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun

   bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis.

   
   

6. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times.

   
   

   COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED

   
   

7. A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September.

   
   

   THEN EXISTING ROAD DESTROYED, REPLACED

   
   

8. In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore.

   
   

   REPLACEMENT ROAD RECLAIMED BY ELEMENTS

   
   

9. In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line.

   
   

   NEW BEACH SEGMENT

   
   

10. In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends

    180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself.

    
    

11. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach.

    Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications.

    Commissioners Anderson and McLean did not testify on these matters.

    
    

12. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment.

    
    

13. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.

    
    

    CONCLUSIONS OF LAW

    
    

14. Although final in tenor, DNR's "Final Order" became proposed, rather than final, agency action by operation of law, upon the filing of the petitions for hearing with which the present formal administrative proceedings began. DNR referred the petitions to the Division of Administrative Hearings for hearing, pursuant to Section 120.57(1), Florida Statutes (1981).

    
    

15. Petitioners and respondent stipulated to the standing or party status of the intervenors.

    
    

16. The facts do not support petitioners' claim that the new beach segment should be deemed grandfathered, pursuant to Section 161.053(7), Florida Statutes (1981). This provision exempts

    
    

    structures existing or under construction prior to the establishment of the coastal construction control line . . . provided such structures shall not be materially altered . . . . Section 161.053(7), Florida Statutes (1981).

    
    

    The beach segment built at Mr. McLean's direction was a new structure, from the sand up. The beach segment built before the hurricane under the aegis of Messrs. Butler and Martin was a "structure existing . . . prior to the establishment of a coastal construction control line." Section 161.053(7), Florida Statutes (1981). But Eloise utterly destroyed this beach segment, along with the sand dune at its landward end. When the storm erased all traces of the old beach segment, there ceased to be a "structure" within the meaning of Section 161.053(7), Florida Statutes (1981), which could be grandfathered.

    
    

17. Mr. Budreau's unpermitted filling and modest grading during the clean up after the hurricane did not revive the old beach segment, factually or legally. All evidence of Mr. Budreau's efforts had vanished, moreover, by the time the new beach segment was built at Mr. McLean's behest.

18. No road ever lay just where this new beach segment lies. No road in the area was ever as long. No precedessor road ever ran as far east. No road on the beach was ever built of the materials used for the new beach segment.

    The new beach segment, built on beach sand in September of 1981, was a new road. It is a new structure for purposes of Chapter 161, Florida Statutes (1981) and could have been built lawfully only if DNR had permitted it to be built.

    Petitioners have never applied to DNR for a permit. Section 161.053(10), Florida Statutes (1981), does not apply.

    
    

19. Once the Walton County Coastal Construction Control Line (WCCCCL) was established, it was forbidden to any "person . . or governmental agency . . . [to] construct any structure whatsoever seaward thereof; make any excavation . .

    . or otherwise alter existing ground elevations," Section 161.053(2), Florida Statutes (1981), in the absence of grandfathering and without a permit granted pursuant to Section 161.053(4), Florida Statutes (1981). Since its construction in September of 1981, the new beach segment seaward of the WCCCCL has constituted a "coastal structure . . . erected in violation of [Section 161.053 and, therefore] . . . a public nuisance," Section 161.053(5), Florida Statutes (1981), as a matter of law, without regard to any environmental impact it may; have.

    
    

20. Both as the upland owner and as the governmental entity that constructed the unpermitted road, Petitioner Walton County has legal responsibility for removing the new beach segment seaward of the WCCCCL. Section 161.053(5), Florida Statutes (1951).

    
    

21. Petitioner McLean acted as an elected official and agent for Walton County in directing that the new beach segment be built. The evidence does not clearly and convincingly, see Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966), support the view that he acted in any other capacity. DNR proposes to impose an administrative or civil fine against him, however, on the authority of Section 161.054, Florida Statutes (1981), and Rule 165-33.21, Florida Administrative Code. Both rule and statute authorize imposition of penalties on "any person or agent of any person," but neither mentions "governmental agency. The term "governmental agency" does appear elsewhere in the same chapter along with the word "person." See Section 161.053(2), Florida Statutes (1981). Its absence in Section 161.054, Florida Statutes (1981), and Rule 165-33.21, Florida Administrative Code, cannot be ignored. The clear inference is that there is no authority for imposition of a civil or administrative fine against a public officer or employee acting as such within the scope of his responsibilities. Because, in the present case, there has been no clear and convincing showing of any ultra vires acts, neither statute nor rule authorizes the fine proposed to be levied against petitioner McLean.

RECOMMENDATION

Upon consideration of the following, it is RECOMMENDED:

1. That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order.

2. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County.

   
   

3. That DNR impose no civil or administrative fine against petitioner W.

L. "Billy" McLean.

DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982.

COPIES FURNISHED:

George Ralph Miller, Esquire Post Office Box 687

DeFuniak Springs, Florida 32433

W. Dennis Brannon, Esquire Post Office Box 1503

Fort Walton Beach, Florida 32549

Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303

Elton J. Gissendanner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Docket for Case No: 82-000132

Orders for Case No: 82-000132