STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SARASOTA COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2462
)
DEPARTMENT OF ENVIRONMENTAL ) REGULATION and RONALD W. FALCONER, )
)
Respondents. )
)
RECOMMENDED ORDER
A final hearing was held in this case in Sarasota, Florida, on November 13, 1986, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:
Petitioner: Wallace L. Storey, Esquire
David M. Levin, Esquire Post Office Box 8 Sarasota, Florida 33578 (Sarasota County)
Respondents: David K. Thulman, Esquire
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
(Department of Environmental Regulation)
William M. Hereford, Esquire 1299 South Tamiami Trail, #1233
Sarasota, Florida 33579 (Ronald W. Falconer)
At the hearing, the Department of Environmental Regulation (Department) called three witnesses and introduced two exhibits; Ronald W. Falconer testified on his own behalf, and introduced nine exhibits; and Sarasota County (County) called three witnesses and also introduced nine exhibits. A transcript of the hearing was filed on December 19, 1986, and the parties requested and received permission to file proposed findings of fact by January 12, 1987. A ruling on timely filed proposed findings of fact is included in the Appendix to this Recommended Order.
ISSUE
The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have
been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes.
POSITION OF PARTIES
This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest.
The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
FINDINGS OF FACT
The following findings of fact are based upon the stipulation of the parties:
The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code.
Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East.
Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action.
In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2.
In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4.
Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules.
Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou.
He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7.
Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982.
However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou.
Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction.
He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11.
Falconer did not have a permit to alter mangroves.
The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou.
Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling.
On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above.
The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order.
Respondent Falconer has complied with the requirements of the Consent Order.
The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7.
The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses:
On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other
environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare.
Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit.
Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications.
Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company.
The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately
$75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985.
Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw
Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou.
According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch.
Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction.
The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou.
Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause. Section 120.57(1), Florida Statutes.
Prior to the commencement of the final hearing, the parties were allowed to present argument on the issue of which party has the burden of proof in these proceedings. The County argued that Falconer has the ultimate burden to establish the basis for, or entitlement to, an authorization from the Department to retain, without modification, the construction here at issue. The Department and Falconer contended that the burden is upon the Department to show only that it acted reasonably in entering into the Consent Order with Falconer.
The facts set forth above establish that the finger piers, wooden deck and enclosed walkway which are here at issue were constructed by Falconer after he received Permit No. DF58-32118-3E, dated March 3, 1981. However, he did not complete construction in accordance with said Permit, but instead completed the construction at issue, for which he had no specific permits. In April 1985, a representative of the Department, James R. Brice, inspected the area, and called for an inspection by the Department's enforcement section, which was conducted on February 5, 1986, by Eva Bailey. Falconer cooperated fully with the
Department in seeking its authorization for the construction here at issue. The Department never initiated enforcement action against Falconer by either a warning notice or notice of violation, but instead entered into the Consent Order which the County challenges. An essential and necessary condition precedent to any Consent Order which authorizes the continued existence, without modification, of construction that has been completed without a permit, is the permittability of such construction.
It is therefore clear that throughout these proceedings Falconer has sought authorization from the Department for construction initiated under a prior permit, but which was not completed consistent therewith. Further, there is no evidence that Falconer has ever been the subject of formal enforcement proceedings. In seeking the Department's approval or authorization, Falconer seeks a "license," "permit," "or similar form of authorization required by law." Section 120.52(8), Florida Statutes. He is seeking in this proceeding to affirmatively demonstrate his entitlement to such authorization, and as such has the burden of proof in this case. Florida Department of Transportation v.
J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
The Department appears to argue that a permit applicant has the burden to meet all statutory and rule requirements, but that a party who has proceeded with construction without a permit, or in a manner inconsistent with permit conditions, need only establish the reasonableness of a Consent Order entered into by that party and the Department. This would amount to a lesser burden for one who constructs without a permit than for one who is lawfully seeking a permit before commencing construction, a result which appears on its face to be absurd. While an agency's interpretation of its own statutes is normally accorded great weight and deference, when that interpretation leads to absurd results, is clearly erroneous or contrary to the plain meaning of said statute, it need not be followed. Natelson v. Department of Insurance, 454 So.2d 31 (Fla. 1st DCA 1984); School Board of Pinellas County v. Department of Administration, Division of Retirement, 492 So.2d 767 (Fla. 1st DCA 1986); Austin v. Department of Health and Rehabilitative Services, 495 So.2d 777 (Fla. 1st DCA 1986).
Further, the Department's position at hearing regarding the burden of proof appears to conflict with portions of its own Final Order in Williams, et al. v. Moeller, et al., Order filed November 4, 1986, DOAH Case Nos. 86-1095 and 86-1096, OGC File No. 86-0240. In that case, the Moellers undertook certain activity without a permit and then entered into a Consent Order with the Department that was challenged by Williams. The Hearing Officer in that case assigned the burden at hearing to the Moellers. In her Final Order, the Secretary of the Department stated:
The Moellers allege that Petitioners should have been required to have the burden of proof in this proceeding to show why the consent order should be revoked. In this exception the Moellers further object to the hearing officer's characterization of the consent order as an "after the fact" permit.
I agree that the hearing officer mischaracterized the consent order as an after the fact
permit, but uphold the hearing officer's determination regarding order of presentation
and burden of proof. The Moellers may have violated Florida Administrative Code Rule
17-4.04(9)(c), and therefore Section 403.161(1)(b), Florida Statutes, for initiating construction of a 996 square foot dock in Outstanding Florida Waters without a permit.
The effect of the consent order was thus to authorize the construction of a
facility requiring a permit pursuant to an application already filed with the Department, rather than to correct a violation. The consent order, therefore, was not an "after the fact" permit, but a substitute for a permit. This means that to obtain authorization to complete the Project,
the Moellers would have the burden of proving reasonable assurances as they would in a normal permitting case.
Specific examples of the appropriateness of a particular remedy
or lack of remedy are beyond the scope of this Final Order, and must be addressed on a case by case basis. When, however, the consent order is designed simply to authorize an activity more appropriately the subject of a permit application, the standards for review must of necessity be
the same. Pages 5-7. (Emphasis Supplied)
Finally, the Department argues that Sections 120.57(3) and 403.121(2)(b), Florida Statutes, support its position concerning the burden of proof. While Section 120.57(3) certainly does authorize informal disposition of "proceedings" by Consent Order, such authorization is applicable "unless precluded by law" and only to settle on-going proceedings. "Proceedings" are commenced only when the Department issues its notice of intended action. Manasota-88, Inc. v Department of Environmental Regulation, 441 So.2d 1109 (Fla. 1st DCA 1983). Thus, an agency must initiate action for there to be a "proceeding," and enforcement actions are initiated by a warning notice or notice of violation, neither of which was issued in this case. Therefore, there were no "proceedings" to which Section 120.57(3) might apply. Section 403.121(2)(b) is likewise inapplicable here since the Department never instituted an administrative proceeding in an enforcement action by issuance of either a warning notice or notice of violation. Since enforcement proceedings were never begun by the Department, these statutory provisions are inapplicable and do not relieve the Department of its permitting responsibility.
Having determined that Falconer bears the burden of proof in this proceeding, and recognizing that the Department supports Falconer in contending that he has met his burden, we now turn to the ultimate issue in this case, as stated above:
Whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway constructed without permits upon the payment of a $3600 penalty; specifically, whether these
structures, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that state water quality standards have
not been violated and that this construction is not contrary to the public interest.
Section 403.087(1), Florida Statutes, requires that stationary installations which will reasonably be expected to be a source of air or water pollution must have a currently valid permit in order to be operated, maintained or constructed. The construction here at issue is an "installation," as defined at Section 403.031(4), Florida Statutes, and is "stationary." It is located in, and adjacent to, Elligraw Bayou, a Class 3 waterbody. By stipulation of the parties, the waterbody is not an Outstanding Florida Water, but a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou. Mangroves were altered during construction, and dredging and/or filling was associated with construction activities which could reasonably be expected to be a source of water pollution. See definitions of "dredging" and "filling" at Section 403.911(2),(4), Florida Statutes. It is clear, therefore, that Falconer is subject to the Department's permitting jurisdiction, and there is no applicable statute or rule which exempts a constructed stationary installation from the permitting requirement of Section 403.057(1). Section 403.913(1) also requires a permit from the Department for all dredging and filling in, on, or over all surface waters.
The Department's rules governing dredge and fill activities are set forth in Chapter 17-12, Florida Administrative Code. Specifically, Rule 17- 12.070(1),(2) requires that "reasonable assurance based on plans, test results or other information" be given that the project will not violate water quality standards and "that the project is not contrary to the public interest" prior to any permit being issued. Rule 17-27.050(1) also requires that "reasonable assurances" be given that mangrove alteration will not be contrary to the public interest. See Section 403.918, Florida Statutes, which sets forth criteria for granting or denying such permits and determining what is in the public interest.
According to Eva Bailey, Craig McArthur, and James R. Brice, current or former employees of the Department who inspected and reviewed the construction at issue, Falconer's construction meets the Department's permitting criteria and is permitable. This determination was a precondition for their entering into the Consent Order with Falconer. The Department's witnesses, who have responsibility for implementing the statutes and rules in question, testified based on their knowledge and experience that Falconer's construction does not adversely affect: the public health, safety, welfare or property of others; fish or wildlife; navigation or cause harmful erosion or shoaling; fishing or recreational values. The project is permanent in nature but does not interfere with any historical or archaeological resources. Elligraw Bayou is a murky receiving body for highway runoff from U.S. 41 and a 660 acre drainage basin. As such the relative condition and environmental value of the water body were minimal prior to Falconer's activities, and his construction did not add significantly, if at all, to the poor water quality in the Bayou.
Thus, it was the testimony of the Department's witnesses that Falconer's project met the criteria set forth in Section 403.918(2). Their testimony outweighed that of Charles Goode, Jack Merriam and Geoffrey W. Patton, who were called by the County, on the issue of the project's permittability.
Goode's testimony concerned the effect of the construction on drainage into Elligraw Bayou. However, it was not shown that any actual impairment to drainage had been caused or that maintenance would be impossible. To the contrary, it was established that the ditch leading to the Bayou could be maintained, although with a more labor intensive procedure than had been used previously. It was also established that the County does not maintain this ditch on a regular basis, in any event. Merriam had no specific knowledge about navigation in Elligraw Bayou or about speeds, wakes, currents, destination of boaters or uses of the Bayou. He admitted that he has not heard of any reported navigational problems in the Bayou. Patton testified that sailboats, finger piers, floating decks and concrete piers present little danger to manatees. He was also unaware of any harm to manatees in the area caused by sailboats.
It was stipulated that Falconer had not prepared or submitted any plans or test results in support of his sought authorization. Yet, Rules 17- 4.07(1) and 17-12.070(1),(2), Florida Administrative Code, allow reasonable assurances to be given by "other information" in lieu of plans or test results. In this case, the Department itself, with the cooperation of Falconer, obtained "other information" through inspection of the construction, and determined that the construction met the applicable permitting criteria, according to Department witnesses.
Therefore, it has been established that Falconer has met the applicable requirements for a permit of the construction at issue, according to competent substantial evidence presented at the hearing. He has the burden of proof as the party seeking the Department's authorization for construction that has already been completed, and he has sustained that burden and proven that there is a proper basis for the authorization conferred by the Consent Order entered into herein. The evidence presented by the County did not rebut or outweigh that which was presented by the Department and Falconer.
Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer.
DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida.
DONALD D. CONN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January 1987.
APPENDIX
(DOAH Case No. 86-2462)
Rulings on Proposed Findings of Fact filed by Sarasota County:
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Rejected as cumulative and unnecessary.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 6.
5 Adopted in Finding of Fact 7.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 9.
Adopted in Finding of Fact 10.
Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11.
Rejected since this is a conclusion of law.
Adopted in Finding of Fact 12.
Adopted in Finding of Fact 13.
15 Adopted in Finding of Fact 20.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 14.
21-22 Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 14.
Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as
irrelevant and unnecessary.
35 Adopted in Finding of Fact 23.
36-37 Rejected as irrelevant and otherwise simply a summation of testimony.
35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence.
Adopted in Finding of Fact 14.
Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25.
44-46 Adopted in Finding of Fact 26.
47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence.
45-50 Adopted in Finding of Fact 25.
51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary.
Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation:
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 6.
Adopted in Findings of Fact 7-9.
Adopted in Findings of Fact 10-13.
Adopted in Findings of Fact 14, 15.
5 Adopted in Findings of Fact 16-19.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 21.
11-12 Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 22.
Adopted in Findings of Fact 20, 25.
Adopted in Finding of Fact 20.
16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative.
Adopted in Findings of Fact 20, 21, 25.
Adopted in Finding of Fact 22.
Adopted in Findings of Fact 20-22.
Adopted in Findings of Fact 22, 29.
Adopted in Finding of Fact 20.
Adopted in Finding of Fact 25.
Adopted in Findings of Fact 23, 27.
Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer:
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 5.
Adopted in Findings of Fact 2, 6.
Adopted in Finding of Fact 6.
Adopted in Finding of Fact 7.
Adopted in Findings of Fact 5, 9.
Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary.
Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary.
12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary.
Rejected as irrelevant and unnecessary.
Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22.
Adopted in Findings of Fact 14-16.
Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21.
Adopted in Findings of Fact 20, 21, 25.
Adopted in Findings of Fact 20, 21.
Adopted in Findings of Fact 20, 21, 25.
Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant.
Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 24.
27-25 Rejected as irrelevant and unnecessary.
29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 26.
Rejected as irrelevant and unnecessary.
COPIES FURNISHED:
Wallace L. Storey, Esquire David M. Levin, Esquire
P. O. Box 5 Sarasota, FL 33575
David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
William M. Hereford, Esquire 1299 South Tamiami Trail, #1233
Sarasota, FL 33579
Dale Twachtmann Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
SARASOTA COUNTY,
Petitioner,
vs. DOAH CASE NO. 86-2462
OGC CASE NO. 86-054
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION and RONALD W. FALCONER,
Respondents.
/
FINDINGS OF FACT
On January 22, 1987, the Division of Administrative Hearings' Hearing Officer who conducted a Section 120.57(1), Florida Statutes, proceeding in the above-styled case submitted his Recommended Order to me and all parties. A copy of the Recommended Order is attached as Exhibit A. On February 2, 1987, the Department timely filed Exceptions to the Recommended Order, a copy of which is attached as Exhibit B. No other parties filed exceptions. The Recommended Order thereafter came before me as Secretary of the agency for final agency action.
BACKGROUND
In 1981, Ronald W. Falconer (Falconer) received a permit from the Department to construct a commercial floating dock in Sarasota County. Falconer did not construct the floating dock authorized by the permit, but instead
constructed twelve stationary finger piers and a wooden deck in Elligraw Bayou. Falconer also built, without a permit, a covered walkway which involved some filling and mangrove alteration. The Department investigated Falconer's violations, determined that no remedial action was appropriate, and initiated negotiations with Falconer to resolve the violations. Those negotiations resulted in a consent order which allowed Falconer to retain the structures built without a permit and which required him to pay $3600 as settlement for the violations. Upon notice of the consent order, Sarasota County filed a petition for administrative hearing. A hearing was held which resulted in the recommended order which is now before me.
RULINGS ON EXCEPTIONS
Exception No. 1
In its first exception, the Department objects to the hearing officer's characterization of Falconer's consent order as a license, arguing instead the consent order is an enforcement document which settles a violation. The Department argues that this distinction is crucial in determining who bears the burden of proof in this proceeding and what issues are appropriate for consideration. I agree that the hearing officer has mischaracterized Falconer's consent order.
There are two classes of consent orders that have been issued by the Department. The first class of consent order serves as authorization for a permittable type of activity that has not yet been conducted or is ongoing in nature and is the type of activity more properly the subject of a permit application. It was a consent order of this class that was at issue in Williams
v. Moeller and DER, 8 FALR 5537 (1986), in which the respondent sought to extend a dock beyond its exempt boundaries. The hearing officer in that case properly determined that the consent order should be reviewed as a permit application, as the Department should have handled the matter in the first place. The second class of consent order is issued by the Department to resolve an alleged violation of statute or rule resulting from a facility being constructed without a permit, or from a facility causing pollution that must be ameliorated, or both. Consent orders of this class are issued to settle existing, outstanding violations of law, and May require any or all of the following as the specific circumstances of each case dictate: payment of penalties, reimbursement of Department costs, payment of damages to the environment, or remedial action.
When a hearing is requested on a consent order of the first class, the burden of proof is on the respondent desiring to conduct or continue the authorized activity as in a permit proceeding. In other words, the respondent must demonstrate entitlement to the authorization by providing reasonable assurances that the criteria in Chapter 403, Florida Statutes, and Department rules have been met. When the challenged consent order is a vehicle for resolving existing violations of law, however, the Department and the settling party must prove not reasonable assurance, but reasonableness of the consent order.
When a consent order allows a project built without a permit to remain, the threshhold question in determining the reasonableness of the consent order is whether the project would have been entitled to a permit had the respondent applied for one. If the respondent or the Department can carry the burden of proving that a permit could have been obtained based upon the reasonable assurance standard, then entry of a consent authorizing the project to remain is per se reasonable. Although the Department, in the exercise of its enforcement
discretion, may find it appropriate to impose additional requirements, such as imposition of penalties, recovery of costs or even removal of the installation, those other requirements are not the proper subject of review by third parties in a Section 120.57(1), proceeding, since they do not affect the substantial interests of the third parties. Those interests are limited to the environmental impacts of the projects themselves. If the project would not have been entitled to a permit, however, inquiry as the the appropriateness of the consent order may be the subject of section 120.57(1) review. That review then focuses on whether the action taken by the Department is a reasonable exercise of its enforcement discretion. Factors such as the nature of the violation, the sufficiency of any penalty, the availability of Department resources, Department enforcement priorities, and the harm that might result from restoration would then be considered in determining the reasonableness of the Department's settlement. The Department must have discretion in the allocation of its enforcement resources, because every violation cannot and should not be treated equally. Unless a third party challenger can show that discretion has been abused, its exercise should not be disturbed.
I accept the Department's first exception to the extent that it asserts that consent orders which settle existing violations of law and allow unpermitted structures to remain are more in the nature of settlement agreements than licenses. Licensing considerations and constraints are important in evaluating the reasonableness of such consent orders, but only under limited circumstances are they absolutely determinative. To the extent the hearing officer's statement of issue and conclusions of law are contrary to this holding, they are rejected.
Exception No. 2
The Department's second exception is to the hearing officer's finding that "enforcement proceedings were never formally initiated by the Department against Falconer," and his conclusion that there was no enforcement proceeding to settle, because enforcement actions are only initiated by a warning notice or notice of violation. The Department contends that the finding and conclusion are incorrect as a matter of law.
The hearing officer's finding that no enforcement action was formally initiated by the Department against Falconer is based on the undisputed fact that the Department did not issue a warning notice or notice of violation to Falconer before entry of the consent order. That finding is only correct to the extent it addresses activities occuring prior to the entry of the consent order. The entry of the consent order itself, however, is the formal initiation of an enforcement proceeding. It often is also the conclusion of the proceeding, but not necessarily so. Where, as here, a third party challenges the consent order, the formal proceeding continues, since the consent order then becomes only proposed agency action similar to the original issuance of a notice of violation. Let me also mote here that a warning letter is not such a formal initiation, since it is only what it says it is - a warning - not an order or any other sort of proposed or final agency action granting a point of entry.
Furthermore, I do not accept the hearing officer's conclusion that Section 120.57(3), Florida Statutes, cannot serve as authority for entry of a consent order unless some preliminary action, such as issuance of a notice of violation, has occurred. By its terms, Section 120.57, Florida Statutes, applies "in all proceedings in which the substantial interests of a party are determined by an agency" unless waived by all parties or otherwise agreed. Section 120.57(3) provides that:
Unless precluded by law, informal disposition may be made of any proceeding by stipulation agreed settlement, or consent order.
Because the consent order entered in this case clearly affects the substantial interests of the Department and Falconer, and because it specifically provided a point of entry for third party challengers, the consent order constitutes a proceeding that may be resolved pursuant to Section 120.57(3), Florida Statutes. To the extent the hearing officer suggests that entry of a consent order would be proper after issuance of a notice of violation (which could occur the same day), but entry of a consent order to initiate the proceeding is not appropriate, he exalts form over substance and I reject his conclusion. In either situation, the rights and duties of the parties and other substantially affected persons are the same. To require the Department to proceed only in the former manner is wasteful of time, money, and manpower.
Exception No. 3
In Exception No. 3, the Department objects to the hearing officer's finding and conclusion that:
McArthur testified that the permittability of construction is an essential factor in, and a precondition for, any consent order
which does not require modification.
and
An essential and necessary condition precedent to any consent order which authorizes the continued existence, without modification, of construction that has been completed without a permit
is the permittability of such construction.
Although the first quote is characterized by the hearing officer as a finding of fact, it is actually a conclusion of law imbued with policy considerations.
Therefore, I may review this exception without resort to the record of the proceeding. As I have previously stated in this order, permittability of a project built without a permit is the threshhold question to consider when determining the need for and scope of remedial action. But permittability is not an "essential and necessary condition precedent" to allowing the unpermitted structure to remain. In making its decision about the need for remedial action, the Department may consider the nature and extent of the violation, the cost in time and manpower of pursuing restoration, the likelihood of success in an enforcement action, the harm to the environment which might result from restoration, and the desirability of less drastic corrective measures than total restoration, among other things. Each case must be determined on its individual facts using the permitting criteria for guidance in conjunction with all other relevant factors. I accordingly reject the hearing officer's conclusions on this issue.
Exception No. 4
The Department urges in its fourth exception that I reject as an improper characterization of the respective burdens of proof in permitting cases and enforcement settlements the hearing officer's conclusion that:
[The "reasonableness of the consent order" standard in review in enforcement cases amounts] to a lesser burden for one who constructs without a permit than
for one who is lawfully seeking a permit before commencing construction, a result which appears on its face to be absurd.
The Department argues that in enforcement cases, the standard of review is not lesser, only different. I agree with the Department's exception and I reject the hearing officer's conclusion.
When a consent order authorizes a project that has not yet been built, the only consideration is whether reasonable assurances have been provided that the project complies with permitting criteria. When a consent order is considered in regard to a project already built, the Department must first determine if the project is permittable. If it is not, then numerous other factors, in addition to permitting criteria, have to be evaluated in deciding how to settle the matter. The hearing officer seems to ignore the fact that the latter type of consent order is a negotiated agreement to resolve a disputed claim. If a project is not permittable, the Department must evaluate all the relevant factors before deciding if and how the violation may be resolved without resort to litigation.
The hearing officer's analysis ignores the realities of investigating and resolving thousands of violations each year. The Department must have the flexibility to consider all factors, and not just the permitting criteria, in determining what settlement, if any, is reasonable and appropriate. In that way, the Department's enforcement resources cam be used in the most efficient and effective manner. For these reasons, and the reasons stated in my other rulings on exceptions, the hearing officer's conclusion is rejected.
Exception No. 5
In Exception No. 5, the Department objects to the implicit characterization it reads into Paragraph 22 of the findings of fact that Falconer "paid" $3600 to be allowed to retain the finger piers and walkways. The Department correctly argues that the $3600 payment was not a quid pro quo for allowing the piers to remain, but was instead a penalty and reimbursement of Department costs. To the extent that the recommended order suggests otherwise, I accept the Department's exception.
Exception No. 6
The Department in this exception objects to the hearing officer's rejection of two of the Department's proposed findings of fact as irrelevant and unnecessary. The proposed findings relate to the time it took to enter into a consent order after discovery of the violations and the duties of the dredge and fill enforcement inspector who handled this case. Reviewing these findings in the context of my rulings on exceptions and in light of the findings and conclusions in the recommended order, I can find no basis for disturbing the hearing officer's rejection of these findings. I accordingly reject the Department's sixth exception.
CONCLUSION
Although the hearing officer's analysis differs from that set forth in this order, he did rule on the threshold question and conclude that Falconer proved his entitlement to a permit. This holding that the project was permittable forecloses further inquiry by the petitioner into the monetary or other terms of the consent order and compels the conclusion that Falconer's consent order was reasonable. The hearing officer's findings of fact and conclusions of law, except as modified by my rulings on exceptions, are consistent with this conclusion.
ORDER
Having considered the Recommended Order and the Department's exceptions thereto, it is
ORDERED that the consent order issued in the case of State of Florida Department of Environmental Regulation vs. Ronald W. Falconer, OGC Case No. 86- 0547, is ratified and approved as final agency action in accordance with Chapter 120, Florida Statutes, except to the extent that it is modified by my ruling on exceptions as set forth in this Final Order.
Any party to this Order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes, by filing 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, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; 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 Order is filed with the Clerk of the Department.
DONE AND ORDERED this 8th day of March, 1987, in Tallahassee, Florida.
FILING AND ACKNOWLEDGMENT STATE OF FLORIDA DEPARTMENT
FILED, on this date pursuant to OF ENVIRONMENTAL REGULATION S120.52 Florida Statutes, with
the designated Department Clerk,
receipt of which is hereby acknow- ledged. DALE TWACHTMANN, Secretary
Twin Towers Office Building 2600 Blair Stone Road
C. Hutchinson 3-8-87 Tallahassee, Florida Clerk Date 32399-2400
Telephone: (904) 486-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing FINAL ORDER has been furnished by United States Mail to the following at their respective addresses, this 9th day of March, 1987.
Wallace L. Storey, Esquire David M. Levin, Esquire Post Office Box 8
Sarasota, Florida 33578
David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
William M. Hereford, Esquire 1299 South Tamiami Trail, #1233
Sarasota, Florida 33579
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida
32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Jan. 22, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 08, 1987 | Agency Final Order | |
| Jan. 22, 1987 | Recommended Order | Respondent permit for construction is approved because he provided reasonable assurances that the construction is not contrary to public interest. |
