STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY COBB, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4169

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This action came on for hearing before the Division of Administrative Hearing's duly designated Hearing Officer, Diane Cleavinger, on February 26, 1988, in Pensacola, Florida. The parties were represented by counsel:

For Petitioner: John R. Grass, Esquire

120 South Alcaniz Street Pensacola, Florida 32501

For Respondent: Richard L. Windsor

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

The specific issue addressed in this hearing is whether Petitioner has engaged in illegal dredging and filling as defined by Chapter 403, Florida Statutes, and Chapters 17-4 and Chapter 17-12, Florida Administrative Code, and whether the "corrective actions" contained in the Respondent's Notice of Violation, dated June 1, 1987, should be required of Petitioner.

Petitioner and Respondent filed their proposed Recommended Orders on April 8, 1988, and March 22, 1988 respectively. The parties' proposed Findings of Fact have been considered and utilized in the preparation of this Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about January 1986, Petitioner, Peggy Cobb, looked at the land located at 5712 Bay Forest Drive, Pensacola, Florida, the property under consideration in this action. Ms. Cobb was shown the property by Shirley Higdon who allegedly had an ownership interest in the property. At the time Ms. Cobb looked at the property it was forested and she did not notice that it was low property. The property backed up to a man-made drainage ditch, but was not otherwise located close to any body of water.

2. Ms. Cobb liked the property and gave Ms. Higdon a binder of $1,000. She signed a contract to purchase the property when a house of her specifications had been built on the lot. The contract to build the house was

   with Higdon Homes, Inc., the actual title holder of the property. Higdon Homes' President was C.R. Higdon, the son of Shirley Higdon.

   
   

3. The purchase contract signed by Ms. Cobb made Mr. Higdon and Higdon Homes, Inc. responsible for building the house on the property. Ms. Cobb only supplied the house plans. Higdon Homes, Inc. was responsible for the site plan placing the home on the property, determining grade and elevation, obtaining the necessary permits for items requiring permits, and ensuring that the house was otherwise built according to the house plans supplied by Ms. Cobb. Ms. Cobb had no control over Higdon Homes or over the detailed aspects of building the home Ms. Cobb had selected. Ms. Cobb did not control Higdon Homes' hiring and firing of personnel, the work hours of the personnel, or the scheduling of the personnel, or subcontractors. In all respects, Mr. Higdon and Higdon Homes, Inc., would be independent contractors under the purchase contract since Ms. Cobb could not control either party in his or its performance. The fact that she had a general knowledge of the status of the construction project does not in any way take away from the independent contractor status of Higdon Homes and

   C.R. Higdon.

   
   

4. Mr. Higdon and Higdon Homes, Inc., began construction of Ms. Cobb's home sometime in February 1986. That same month, Higdon Homes placed fill material on the Bay Forest Drive property. At no time did Higdon Homes or Mr. Higdon obtain a fill permit from DER for the placement of the fill on the Bay Forest Drive property. Construction went along in a normal fashion until June 25, 1986 when Charles Harp, Respondent's Environmental Specialist, conducted a field inspection of the property and preliminarily concluded that there was fill placed on wetlands within DER's jurisdiction. Ms. Cobb discovered that DER had conducted a field inspection when an employee of Higdon Homes told her about a "DER person inspecting the property and indicating that it was in violation of DER Rules and Regulations." Ms. Cobb immediately called DER and spoke with Elizabeth Petty, an Enforcement Specialist with DER in dredge and fill and storm water permitting.

   
   

5. Ms. Cobb was, understandably, very upset since the field inspector indicated there was a violation regarding the fill's placement and that she may not be able to further fill her very wet backyard. This was her dream home and the dream was suddenly developing problems. She was only two days away from closing on her house and didn't know what to do.

   
   

6. Ms. Petty advised her to call back the next day to talk to the field inspector Charles Harp. Ms. Cobb called Mr. Harp the next day. Mr. Harp indicated to her that she would have to remove the fill and perhaps tear down her house since a corner of the house appeared to be in DER jurisdiction. Ms. Cobb became even more upset.

   
   

7. At this point, Ms. Cobb was under extreme pressure from Mr. Higdon to close on the house. Mr. Higdon assured her that nothing would happen and DER would only fine him and he would be able to fill the land anyway. She contacted two attorneys who advised her to go ahead and close the sale, but close contingent on the builder correcting any deficiencies or developing DER problems. Ms. Cobb followed the advice of these attorneys and closed on the house on June 27, 1986.

8. That same day Cliff S. Rohlke, Jurisdictional Specialist for DER, performed an inspection to formally determine the landward extent of DER's jurisdiction over the Bay Forest Drive property. His inspection revealed the property was adjacent to a man-made ditch flowing continuously into Ramsey Canal. Ramsey Canal then flows continuously into Perdido Bay. The original soil beneath the fill was hydric soil. There was no canopy on the property. However, the adjacent lots were undisturbed and Mr. Rohlke observed several plant species identified by rule as being submerged wetland plants growing. Based on his observations, it was Mr. Rohlke's opinion that DER's jurisdiction extended across the back of the lot, beginning approximately 20 feet west of the eastern lot line and crossing the property diagonally until exiting the property at the junction of the north and west lot lines. The jurisdictional area included a corner of the house. Fill material was placed in the entire area described by Mr. Rohlke's findings. This area does fall within the landward extend of DER's jurisdiction over wetlands and to the extent fill material was placed in that area without a permit would constitute a violation of Section 403.918, Florida Statutes.

   
   

9. On July 8, 1986, approximately two (2) weeks after the closing, Ms. Cobb received a warning letter from DER which outlined the violation and requested removal of the fill and restoration of the property. On June 1, 1987, DER issued Ms. Cobb a Notice of Violation and Order for Corrective Action. The Order of Corrective Action required removal of 45 feet of the illegal fill material and allowed the home and the contiguous fill underneath the home to remain. Under the circumstances the corrections desired by DER are very reasonable.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. The evidence clearly establishes that Higdon Homes, Inc., placed fill material within a wetlands area under DER jurisdiction. Section 403.913, Florida Statutes. Since neither Higdon Homes nor Petitioner obtained a permit from DER, the fill which was placed on the Bay Forest Drive property violated the environmental laws of the State of Florida. Section 403.913, Florida Statutes.

    
    

12. Having established a violation, DER has several remedies available to it. See Sections 403.121, 403.131, 403.141, and 403.161, Florida Statutes. In this case, DER chose to order the removal of a portion of the fill and allow revegetation of the restored area. The corrective action ordered in this case is clearly reasonable under the circumstances. Chapter 403, Florida Statutes.

    
    

13. There is no question that DER has been granted broad powers to order the prevention, abatement or control of conditions creating a violation of Section 403.913, Florida Statutes, et seq., the Warren S. Henderson Wetlands Protection Act of 1984. DER has been granted many and varied remedies both judicial and administrative. However that broad grant of authority did not change the due process requirement that those remedies be enforced against the person or persons responsible for the violation. Neither the wetlands act nor its enforcement provisions provide for strict liability of a landowner who was not otherwise directly responsible for the placement of unpermitted fill material. The ultimate issue in this case involves precisely the issue of who may DER order to take these corrective actions and, therefore, bear the cost

    penalty of complying with that order. To the extent that DER's enforcement determines liability and imposes penalties for violation of the State's wetland act then, to that extent, the statutes must be strictly construed in favor of those sought to be regulated or penalized. Gardinier v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 1st DCA 1974).

    
    

14. Section 403.913, Florida Statutes, governs dredge and fill activities in Florida wetlands. The relevant portion of Section 403.913, Florida Statutes, reads as follows:

    
    

    1. No person shall dredge or fill in, on, or over surface waters without a permit from the department...

       
       

       The statute only refers to the person directly doting the filling. It does not refer to a person causing, maintaining, allowing or suffering the filling by any indirect means. In this case, the person doing the filling on the Bay Forest Drive property was Higdon Homes, Inc. At the time of the filling, Higdon Homes owned the property. The only interest Ms. Cobb had in the property was contractual. She did not control the placement of the fill or control the quantity of the fill placed on the property. The only item she contributed to the project was to supply the house plans of the home constructed on the property. Ms. Cobb did not wish to violate any laws regarding the building of her house. In fact, she had no knowledge or method of discovering through public records that DER may have jurisdiction over the lot she was interested in. She did not accept the illegal fill when she closed on her house. She allowed that liability to remain with Higdon Homes who was very familiar with DER and DER permitting requirements. The acts of Higdon Homes simply cannot be attributed back to Ms. Cobb without some agency connection. See Slavin v. Kay,

       108 So.2d 462 (Fla. 1958). To suggest that because Ms. Cobb was the ultimate purchaser and therefore should be liable strains the language of the statute. Liability without fault flies in the face of concepts of due process and fair play and is not a reasonable interpretation of the wetlands act and its enforcement provisions.

       
       

15. The above holding in no way leaves DER without someone responsible for illegal filling activities. The actual perpetrator, Higdon Homes, is available. Moreover, should Higdon Homes be defunct and there is no other person against whom DER can enforce its Notice of Violation, DER always has the power and authority to remove the illegal fill itself. Nor, does the above holding deal with a violation where the landowner employs someone to place fill on the landowner's property at the landowner's direct ion or the myriad variations on this theme where an agent of the landowner is involved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED:

That the Notice of Violation and Orders for Corrective Action be dismissed against Respondent.

DONE and ORDERED this 21st day of April, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 21st day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4169

Petitioner Peggy Cobb's proposed findings Numbers 1, 2, 3, 4, 7 and 8 have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact Number 5 has been adopted except for the last sentence which was not shown by the evidence.

Petitioner's proposed finding of fact Number 6 is subordinate.

Respondent's proposed findings of fact Numbers 1, 4, 6, 7, 8, 10, 11, 13 and 16 have been adopted, in substance, insofar as material.

Respondent's proposed finding of fact Number 2 is immaterial as to the present and not shown by the evidence as to the time the fill activity occurred.

Respondent's proposed finding of fact Number 3 has been adopted except the evidence showed January to be the contract date.

Respondent's proposed finding of fact Number 5 is subordinate.

Respondent's proposed finding of fact Number 9 has been adopted except the evidence did not show Petitioner consulted with Higdon.

Respondent's proposed findings of fact Numbers 12, 14 and 15 are irrelevant.

COPIES FURNISHED:

John R. Grass, Esquire

120 South Alcaniz Street Pensacola, Florida 32501

Richard L. Windsor Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

PEGGY COBB,

Petitioner,

vs. OGC FILE NO. 87-0003

DOAH FILE NO. 87-4169

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On April 21, 1988, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me her Recommended Order, a copy of which is attached as Exhibit A. No parties filed exceptions to the Recommended Order, which thereafter came before me as Secretary of the Department for final agency action.

The proceeding resulted from a Notice of Violation issued by the Department against Peggy Cobb. She was found by the hearing officer to have purchased property that had contained a wetland area subject to the Department's jurisdiction pursuant to Section 403.913, Florida Statutes, and had been filled without a permit in violation of that statute prior to Ms. Cobb's purchase of the property. The hearing officer found that the corrective actions ordered by the Department were reasonable, but that Ms. Cobb should not be required to perform the corrective actions herself because she was "without fault" as a subsequent purchaser of the property.

In considering the hearing officer's Recommended Order I note that the Department, in Department of Environmental Regulation v. K&F Services, Inc. and Sunshine Jr. Stores, Inc., 8 FALR 5107 (Final Order dated September 26, 1988), has previously held that subsequent purchasers of property may be required to undertake corrective actions for violations caused and not corrected by previous landowners. That case is currently being reviewed in the First District Court of Appeal. In addition, the hearing officer's statement that "[l]iability without fault flies in the face of concepts of due process" is contradicted by the well established concept of strict liability for environmental harm, which has existed in the common law of this state for at least a century. See

Pensacola Gas Co. v. Pebley, 5 So.2d 593 (Fla. 1889); City Service Co. v. State of Florida, 312 So.2d 799 (Fla. 2d DCA 1975). The language of Section 403.141, Florida Statutes, imposing joint and several liability for multiple violators of Chapter 403; and Section 403.161, which makes willful violations of environmental laws a criminal offense, indicate clear legislative intent to follow the established common law principle of strict liability for environmental harm.

Notwithstanding the above-stated principles, I recognize that some discretion must be exercised by the Department in bringing enforcement actions against persons who acquire property upon which environmental violations have previously been committed. Factors to be considered in the exercise of such discretion include availability of Department resources; likelihood of success, particularly if it can only be attained through extended and costly litigation: knowledge, direct or imputed (as in the business relationship in Sunshine, supra), as to the existence of the violation; whether environmental harm associated with the violation is ongoing or has abated; whether the subsequent property owner has had relied on representations from presumably knowledgeable sources that no liability will attach to that owner; and the impact of the violations on third parties, the environmental resources of the state and the credibility and effectiveness of the Department's enforcement efforts. The Department's decision to initiate enforcement is not an appropriate subject for DOAH review. Sarasota County v. Department of Environmental Regulation and Falconer, 9 FALR 1822 (Final Order dated March 7, 1987). Once enforcement has been initiated, however, the purpose of the administrative proceeding is to formulate agency action, and can include a recommended order from a hearing officer who has the opportunity to hear the witnesses and review the evidence on a personal basis. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). That recommendation provides me with key information necessary to determine whether enforcement should continue to proceed. Here, for example, it was clear from the outset that a violation occurred on Ms.

Cobb's property, and that she was in possession of that property when the Notice of Violation was filed. The hearing and Recommended Order brought out mitigating factors, however, to suggest that further enforcement against Ms.

Cobb may not be appropriate, and that the Department's enforcement resources might be better spent pursuing Mr. Higdon and Higdon Homes, Inc., who were found by the hearing officer to be responsible for causing the violation in the first place. The hearing officer also recognized in her sixth conclusion of law that if relief against those other parties is not available and the violations is sufficient to warrant corrective measures, the Department could undertake the corrective measures itself. Upon reviewing this recommendation of the hearing officer, I find that I concur with her recommendation to dismiss this action, though I do not agree with her legal reasons for the recommendation.

THEREFORE, it is ORDERED:

1. The hearing officer's findings of facts are accepted in their entirety.

   
   

2. The hearing officer's conclusions of law numbers one through three and six are accepted. The rest are rejected for the reasons set forth in this Final Order.

   
   

3. The Notice of Violation and Orders for Corrective Action is dismissed against Ms. Cobb. Such dismissal, however, does not preclude the Department from undertaking any necessary action against Ms. Cobb in conjunction with any

restoration of her property that may be completed by others as provided in the hearing officers conclusion of law number six.

DONE AND ORDERED this 14th day of July, 1988, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.

7-15-88

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by U.S. Mail to JOHN R. GRASS, 120 South Alcaniz Street, Pensacola, Florida 32501; and by hand delivery to DIANE CLEAVINGER, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Oakland Building, Tallahassee, Florida 32399-1550 and RICHARD L. WINDSOR, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, on this 15th day of July, 1988.

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

Docket for Case No: 87-004169

Orders for Case No: 87-004169