STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4359

)

DENNIS BLACK, )

)

Respondent, )

and )

)

RONALD E. BLACK and )

THOMAS A. JOHNSON, )

)

Intervenors. )

)

RECOMMENDED ORDER

This matter came on for hearing in Milton, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on February 4, 1988. Petitioner Department of Environmental Regulation (DER) filed its proposed recommended order on February 25, 1988. The attached appendix addresses proposed findings of fact by number. DER was represented by counsel:

Richard L. Windsor, Esquire 2600 Blair Stone Road Tallahassee, Florida 32399-2400

The notice of violation and orders for corrective action DER filed on September 8, 1987, allege that Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black violated "Sections 403.161(1)(b) and 403.913(1), Florida Statutes, and Florida Administrative Code Rule 17-12.060" by "constructing a bulkhead some 52 feet waterward of the present mean high water [line] in Escambia Bay" and did so "without an appropriate and currently valid permit issued by the Department."

As corrective actions, DER calls for the persons to whom the notice of violation is addressed to cease and desist "prior to receiving the necessary permit from the Department or notice that the proposed activity is exempt"; to reimburse DER $156.93 "expenses incurred in investigating the violation"; and to restore the site.

Three Named Persons Parties

In response to its notice of violation and orders for correction action, DER received, on September 25, 1982, a lengthy petition for administrative proceedings, which begins, "We, Eugene Black and wife Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel Black and Ronald Black, hereby request a formal hearing pursuant to Section 120.57(1), Florida Statutes." Only Dennis R. Black

actually signed the petition, however. Present at the final hearing were Ronald

E. Black and Thomas A. Johnson, but none of the other persons to whom the notice of violation was addressed.

At final hearing, DER filed a motion for determination of authorization and qualification of representative. DER argued that Dennis R. Black did not meet the requirements laid down for qualified representatives in Rule 22I-6.008, Florida Administrative Code, and that persons to whom the notice of violation was addressed who did not themselves sign the petition had not effectively invoked formal administrative proceedings. As far as the record shows, Dennis

1. Black does not meet the requirements laid down for qualified representatives. On DER's motion, the lack of signatures was deemed a defect; and no motion to amend the petition was made.

   
   

   DER's counsel disavowed any purpose to deprive Messrs. R. E. Black and Johnson of an opportunity to participate in a formal evidentiary hearing, and waived objection to their intervention, specifically waiving the time requirements of Rule 22I-6.010, Florida Administrative Code. On this basis, intervention was allowed, with the result that nobody to whom the notice of violation was addressed and who appeared for final hearing was precluded from participation.

   
   

   By order entered March 21, 1988, DER's ore tenus motion to dismiss Dennis Black as a party and DER's subsequent motion for entry of deferred ruling were denied.

   
   

   ISSUE

   
   

   Whether the orders for corrective action DER proposes to enter should be made final against the persons to whom the notice of violation is addressed for the reasons alleged in the notice?

   
   

   FINDINGS OF FACT

   
   

   1. Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black do business under the name Gulf Bait & Tackle. Mr. Johnson and Mr. R. E. Black fish for bait from boats that the business moors in a canal on Hernandez Point in Santa Rosa County.

      
      

   2. The canal enters Class II waters approved for shellfish harvesting in Escambia Bay near East Bay. By 1986, shoaling at the mouth of the canal began to interfere with ingress and egress. The Blacks attributed the shoals to the failure of the sea walls along the canal sides near the mouth.

      
      

   3. Three hurricanes in rapid succession had left a tattered remnant of the creosote-soaked wooden structures. Vandalism and a ditch the county dug behind the western wall, which stood on county property, also contributed.

      
      

   4. In October of 1986, perhaps half the sea wall paralleling the eastern canal bank survived. At the southern end of this segment, the sea wall turned a corner and ran east till it reached shore. What had been land inside the corner was badly eroded. Only the four easternmost panels of the southern portion of the sea wall east of the canal remained intact. Water moved freely past wooden piles resembling, in their disconnectedness, a skeleton which most of the flesh had let go. DER's Exhibit No.

      1.

   5. On January 28, 1986, the Blacks bought "Lot 37, Garcon Subdivision," the Partly submerged parcel once protected by perpendicular seawalls east of the canal. DER's Exhibit No. 8.

      
      

   6. West of the canal mouth, the Blacks volunteered their time and equipment to install a concrete seawall abutting the county property. Neither the county nor the Blacks sought or obtained a permit for this work. Joseph Charles Harp, a dredge and fill inspector in DER's employ, testified that the western seawall was exempt from permit requirements, although it extends into the bay beyond the mean high water line.

      
      

      Lot Resold

      
      

   7. The Blacks and Mr. Johnson agreed to sell Lot 37, Garcon Subdivision, to James F. Richardson and Susan M. Richardson for what they had paid for it, and to construct a sea wall, if the Richardsons would furnish materials for the job, as Santa Rosa County had done, for the sea wall west of the canal.

      
      

   8. In keeping with this agreement, a deed was executed in favor of the Richardsons, DER's Exhibit No. 9, who furnished materials with which, in two weeks' time, the Blacks constructed a vertical, concrete seawall and dredged the canal, using a bulldozer, a crane and a dragline. Before the work was undertaken, neither the Blacks nor the Richardsons sought or obtained a DER permit.

      
      

   9. The new seawall stands in about the same place the wooden seawall on the eastern side of the canal, which "had been nonfunctional for years," once stood, consisting, as the older structure had, of two perpendicular sections. The new southern leg runs east along a line about one foot south of its predecessor, until it intersects the shore of the bay.

      
      

      DER Finds Project

      
      

   10. Work on the Richardsons' seawalls was almost done when it came to DER's attention on April 1, 1987. In conversations on site, the Blacks asked Mr. Harp, the dredge and fill inspector, if they could go forward with capping the seawall. The seawalls were in place, and sand dredged from the canal had been deposited between the seawalls and the mean high water line, but the walls had not yet been capped. Mr. Harp, who in any event lacked authority to order work stopped, told them they might.

       
       

   11. Nobody from DER ever told the Blacks, Mr. Johnson or anybody else that seawalls east of the canal would not require a DER permit. When DER's Mr. Harp told Whitfield Casey that Mr. Casey could repair his own seawall, without a permit, he made it clear that the exemption depended on the seawall's being "functional," when repaired.

       
       

   12. After the sea wall had been built, Mr. Harp suggested making application for a dredge and fill permit. He assisted Mr. Richardson in filling out an application for an after the fact permit. The Blacks wrote the $100 check in favor of DER that accompanied the Richardsons' application for a permit to dredge and fill, after the fact.

       
       

       Resold Lot Resold

       
       

   13. In a telephone conversation with Mr. Richardson Mr. Harp learned, about three weeks after the fact, that Mr. Johnson and the Blacks were once

       again the owners of Lot 37. It was in the course of this conversation that Mr. Richardson relayed an offer to place riprap against the south side of the southern seawall.

       
       

   14. Having decided against building on Lot 37 after all, Mr. and Mrs. Richardson had reconveyed to Mr. Johnson and the Blacks by warranty deed filed at the courthouse in Milton on May 4, 1987. The way the Richardsons calculate it, the Blacks owe them about $7,000, and they are sure the Blacks and Mr. Johnson will do the right thing by them.

       
       

   15. In the same telephone conversation in which he apprised Mr. Harp of the reconveyance, Mr. Richardson told him he should, in the future, deal with Mr. Johnson and the Blacks. Mr. Harp understood him to ask that the pending application for an after the fact permit be withdrawn. At hearing, however, Mr. Richardson testified that he never requested that the application be withdrawn.

       
       

   16. DER sent Mr. Richardson a check for $100, refunding the permit application fee. The check reached him in North Carolina in July, and eventually one of the Blacks. The status of the application was apparently unknown or unclear to Messrs. R. E. Black and Johnson before the final hearing in the present case, however. They expressed a desire to pursue a permit application.

       
       

       Enforcement Proceedings

       
       

   17. In August of 1987, a meeting among various DER employees, Mr. Johnson and the Blacks yielded more heat than light, and the notice of violation with which the present proceedings began ensued. Perhaps friction at the meeting also inspired the false and wholly baseless insinuations or allegations against DER personnel which mar the petition for administrative proceedings.

       
       

       CONCLUSIONS OF LAW

       
       

   18. When DER referred the petition for administrative proceedings to the Division of Administrative Hearings, the Division assumed jurisdiction of the parties and the subject matter of this controversy, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987).

       
       

   19. Except for projects exempt under Rule 17-4.040, Florida Administrative Code, no dredging or filling may be undertaken in the waters of the state without a permit from DER. Section 403.918, Florida Statutes (1987). In the present case, the Blacks and Mr. Johnson dredged and filled in waters of the State without a permit. But the intervenors urge two bases for exemption from the requirement that they have a permit.

       
       

   20. First, they argue that the project was exempt because they constructed seawalls within canals. The pertinent subsection of the rule provides:

       
       

       Construction of seawalls or riprap (including necessary backfilling), and private docks (as defined in Section 17- 4.040(10)(c), F.A.C.) in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or affect flood control. An artificially created waterway will be

       defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems. This exemption does not apply to the construction of vertical seawalls in estuaries or lagoons unless the proposed construct ion is within an existing man- made canal where the shoreline is currently occupied in whole or in part by vertical seawalls. Rule 17-4.040 (10)(f), Florida Administrative Code.

       
       

       DER concedes that Rule 17-4.040, Florida Administrative Code, exempts the portion of the seawall within the canal. But most of one segment and all of the other lie outside the canal.

       
       

   21. Second, the intervenors contend that the project is exempt because they repaired and restored an existing seawall. The exemption for repair or restoration of seawalls not within artificially created waterways is available, however, only if the seawall to be repaired or restored is "functioning". The pertinent subsection provides:

       
       

       The restoration of a seawall or riprap at its previous location or upland of or within one (1) foot waterward of its previous location. No filling can be performed except in the above-authorized restoration of the seawall or riprap.

       No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. Restoration and repair shall be in accordance with the criteria set forth in Section 403.918(5), F.S., and shall be limited to functioning seawalls or riprap. A seawall or riprap shall not be considered functioning if there is an exchange of waters through or around the seawall or riprap which is of sufficient quantity, duration or frequency so that the restoration of the seawall or riprap will have the potential to cause or contribute to a violation of state water quality standards or other criteria listed in

       Section 403.918, F.S. Rule 17-4.040(10)(h),

       Florida Administrative Code.

       Overwhelming and uncontroverted evidence established that the seawall in question here had not been functioning "for years." This exemption is unavailable to Mr. Johnson and the Blacks.

       
       

   22. Except for the portion within the canal, the seawall was not exempt and its construction without a permit amounted to a violation, within the meaning of Section 403.121(2)(b), Florida Statutes (1987). DER would, therefore, have been entitled to recover its costs of investigation, if they had been proven at final hearing.

       
       

   23. The other relief DER seeks is removal of the seawall and restoration of the site. It was clear at hearing, however, that Mr. Black and Mr. Johnson wanted to file an application for an after the fact permit like the application Mr. Richardson had filed. The relief DER seeks would not be consonant with the grant of such an application, even in part. It might not do, in the ordinary case, for a violator to propose an eleventh hour permit application, but this is not the ordinary case. Here ordering removal and restoration before a permit application can be acted on would be inappropriate. Apparently only because of a misunderstanding was a permit application like the one proposed deemed withdrawn without consideration of the merits.

       
       

   24. DER argues that any permit application is doomed to failure, but a DER employee, whom DER called as its own witness at hearing, testified he had suggested the application be made and that such applications are sometimes granted. The evidence also showed that the unpermitted seawall on the west side of the canal, against which DER has not instituted enforcement proceedings, extended waterward of the mean high water line.

It is, accordingly, RECOMMENDED:

That DER order Eugene & Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black to remove the seawalls they placed east of the canal, except for the portion within the canal, and restore the site to its former contours, unless they make application to DER for an after the fact dredge and fill permit within 30 days of the final order in this proceeding, and unless the application eventuates in the grant of an after the fact dredge and fill permit.

DONE and ENTERED this 2nd day of June, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 2nd day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4359

DER's proposed findings of fact Nos. 1, 2, 5, 6, 8, 9, 10, 12, 13 and 15 through 21 have been adopted, in substance, insofar as material.

DER's proposed findings of fact Nos. 3 and 4 have been adopted, in substance, insofar as material, except that intervenors acted in concert with the others the notice of violation addresses.

With respect to DER's proposed finding of fact No. 7, whether the old sea wall could have been repaired was not clear.

With respect to DER's proposed finding of fact No. 11, the testimony was that the waters were Class II, approved for shellfish harvesting, but that they were in Escambia, not in East Bay.

Testimony that the intervenors requested the refund was not credited.

Nobody testified that the Blacks sought to withdraw the permit application at any time or that anybody ever withdrew the application in writing. Mr.

Richardson's testimony that he received the refund check (which he forwarded) was credited.

COPIES FURNISHED:

Richard L. Windsor Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Ronald E. Black Thomas A. Johnson Dennis Black

Gulf Bait and Seafood 4028 Glen Gibson Road Milton, Florida 32570

Dale Twachtmann Secretary

Department of Environmental Regulation

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

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Petitioner,

vs. OGC FILE NO. 87-0003

DOAH FILE NO. 87-4359

DENNIS BLACK,

Respondent,

and

RONALD E. BLACK AND THOMAS A. JOHNSON

Intervenors.

/

FINAL ORDER

ON June 2, 1988, hearing officer from the Division of Administrative Hearings submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit A. In accordance with Florida Administrative Code Rule 17-103.200, all parties were allowed ten days in which to file exceptions to the Recommended Order None of the parties have submitted exceptions.

The Recommended Order thereafter came before me as head of the Department for final agency action. While I concur with the findings of fact and conclusions of law of the hearing officer, I also find that the recommendation is incomplete in that it fails to address two potential situations: what should be done in the event the Department issues a permit regarding the subject site that would necessitate (note: a portion of this Final Order line is unavailable in ACCESS) to the project's existing configuration; and how soon should restoration be completed in the event no permit application is made or the application is denied. In this regard I note that the Orders for Corrective Action included in the Notice of Violation filed in this case require restoration within 30 days; and it is reasonable to infer ,based upon the language in the Recommended Order, that the Hearing Officer found that time period to be reasonable. Therefore, having considered the Recommended Order, pleadings, and other documents submitted in this case, it is

ORDERED:

1. The Recommended Order is adopted in its entirety, but supplemented further by the second sentence in paragraph two and all of the third paragraph below.

   
   

2. Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black shall, as set forth in the Recommended Order, remove the seawalls they placed east of the subject canal, except for the portion within the canal, and restore the site to its former contours, unless they make application to the Department for an after the fact dredge and fill permit within 30 days of the filing of this Final Order and unless the application eventuates in the grant of an after the fact dredge and fill permit. In the

   event no application is made, restoration shall be completed within 30 days of the last day the permit application would have been due pursuant to this paragraph.

   
   

3. In the event the application results in a dredge and fill permit for a project different from that already built, the above-named parties shall, in lieu of restoration as described in paragraph two undertake such construction as is necessary to conform the site as it now exists to the configuration set forth in the permit, and complete that construction within the time frames set forth in the permit. In the event the application is denied, the restoration required in paragraph two shall be completed within 30 days of permit denial.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of 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 9th day of August, 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

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by U.S. Mail to RONALD E. BLACK, THOMAS A. JOHNSON, EUGENE BLACK, MARIAN O. BLACK, DANIEL V. BLACK, AND DENNIS BLACK, Gulf Bait and Seafood, 4028

Glen Gibson Road, Milton, Florida 32570; and by hand delivery to ROBERT T. BENTON, 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 32399-2409, on this 10th day of August, 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: 87-004359

Orders for Case No: 87-004359