STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RADFORD AND LAURIE STEDHAM, )

)

Petitioner, )

)

vs. ) Case No. 97-2152

)

HARRY CHRISTNER )

and FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on October 30, 1997, in Viera, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel B. Fowler, Esquire

Patricia Loy-Bond, Esquire Markey and Fowler, P.A.

410 West Merritt Avenue

Merritt Island, Florida 32954-1081

For Respondent, Kenneth C. Crooks, Esquire Harry Christner: Dean, Mead, Spielvogel, Goldman

and Boyd

7380 Murrell Road, Suite 100

Melbourne, Florida 32940

For Respondent, Thomas I. Mayton, Esquire

Department of Department of Environmental Protection Environmental 3900 Commonwealth Boulevard Protection : Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are whether the replacement of a dock by Respondent Christner in February 1993, is exempt from the requirement for a permit pursuant to Section 403.813(2)(d), Florida Statutes (1995) 1/ and Florida Administrative Code Rules 40C-4.051(11)(i) and 62-312.050(1)(i) 2/ and, if not, whether: Petitioners waived their right to request an administrative hearing pursuant to Rules 62-103.155(3)(b); Petitioner's have legal standing to challenge the agency action proposing the exemption; and the agency is estopped from reopening its prior determination.

PRELIMINARY STATEMENT

On December 20, 1995, Respondent, Department of Environmental Protection (the "Department") forwarded a letter to Respondent, Harry Christner ("Christner"), setting forth the Department's determination that Christner's replacement of an existing dock in February 1993, was exempt from the general requirement for a permit. On March 31, 1997, Petitioners filed a Petition For Formal Administrative Hearing. On May 8, 1997, the Department referred the matter to the Division of Administrative Hearings to conduct an administrative hearing.

At the hearing, Petitioners presented the testimony of four witnesses and submitted 16 exhibits for admission in evidence.

Christner presented the testimony of two witnesses and submitted

18 exhibits for admission in evidence. The Department presented

the testimony of two witnesses and submitted one composite exhibit for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the record of the hearing. None of the parties requested a transcript of the hearing. The parties timely filed their proposed recommended orders ("PROs") on or before November 12, 1997.

FINDINGS OF FACT

1. The Department is the state agency responsible for regulating and permitting residential docks. Since February 1969, Christner has resided at 1655 Misty Dawn Lane, Merritt Island, Florida. The Christner property is adjacent to the waters of Newfound Harbor in Brevard County, Florida.

2. Petitioners have owned property adjacent to Christner since 1990 and resided there until September 1997. Petitioners' property is located at 1665 Misty Dawn Lane.

3. A dock existed behind the Christner property from 1972 until February 1993 (the "original dock"). After constructing the original dock, Christner sold a parcel of his land to Petitioners. After the sale, the original dock was located within 25 feet of the common boundary between the respective properties owned by Christner and Petitioners.

4. In February 1993, Christner contracted with Mr. John Calhoun, Unique Seawall and Dock Systems, to replace the original dock. The replacement dock was completed in February 1993.

5. The replacement dock is in the same location and of the same configuration and dimensions as the original dock. The replacement dock was constructed within the footprint of the original dock. No fill material other than piles was used to replace the original dock.

6. Prior to October 1991, the original dock was in need of repair but was still functional. It provided access to boats moored at the dock. The original dock could still be used for fishing and mooring small boats.

7. Between October 1991 and December 1992, the original dock was rendered non-functional. It was rendered non-functional by a discrete event.

8. The term "discrete event" is not defined by statute or rule. A discrete event includes a storm, flood, fire, or accident. Neither the witnesses nor their records recorded a storm, flood, fire, or accident between October 1991 and December 1992.

9. The term "discrete event" is not limited to a storm, flood, fire, or accident. It can include wind and high water.

10. Wind and high water could have damaged the original dock without damaging newer docks in the immediate vicinity that had the benefit of better construction and were in better repair. The original dock was nearly 20 years old in October 1991 and in disrepair.

11. The damage caused by the discrete event left several large gaps in the original dock. The damage to the original dock

    between October 1991 and December 1992 could not have occurred without a discrete event.

12. Christner constructed the replacement dock in February 1993 without a permit. In September 1995, Petitioners filed a complaint with the Department. The complaint alleged that the replacement dock was constructed without a required permit.

13. By letter dated October 4, 1995, the Department advised Christner that the replacement dock was an unauthorized single family dock. The Department stated in the letter that the original dock was non-functional in November 1992 and was repaired prior to March 1993 without proper permitting.

14. The letter required Christner to apply for a permit. In October 1995, Christner filed an application for a Noticed General Permit and paid the application fee.

15. After October 4, 1995, the Department determined that the dock was functional prior to its repair and exempt from permitting requirements pursuant to Section 403.813(2)(d) and Rules 40C-4.051(11)(i) and 62-312.050(1). The Department based its determination on representations by Christner and his dock builder that the original dock was repaired with planks before constructing the replacement dock. Christner and his dock builder represented that the planks spanned the gaps in the original dock so that the dock could be used to moor small boats. Christner represented that an individual could walk above the water line on the planks to the boats.

16. On December 8, 1995, Petitioners received actual notice of the Department's determination that the replacement dock was exempt from permitting requirements because the original dock was functional prior to its replacement. An employee of the Department who investigated Petitioners' complaint notified Petitioners and Christner by telephone of the proposed exemption.

17. The Department did not publish written notice of the proposed exemption and did not provide Petitioners with written notice of the Department's action. The Department violated Rule 62-103.155(5) by failing to provide Petitioners with written notice of their right to request an administrative hearing.

18. In December 1995, counsel for Petitioners made several inquiries of the Department to determine how the decision to exempt the replacement dock was made and if it could be changed. Department personnel represented that the case was closed and nothing could be done to change the decision.

19. In December 1995, counsel for Petitioners contacted the Department's office of general counsel concerning a point of entry. A Department employee represented that no review was possible.

20. In its PRO, the Department now proposes that the replacement dock was not exempt from the requirement for a permit. The Department proposes that the original dock was not functional prior to the construction of the replacement dock and that a discrete event did not cause the original dock to be non- functional.

    CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1). The parties were duly noticed for the hearing.

22. Petitioners have standing to challenge the proposed exemption. The proposed exemption would affect Petitioners' substantial interests within the meaning of Section 120.52(12)(b).

23. Authorization of the exemption by the Department constitutes agency action subject to the provisions of Chapter

120. Friends of the Hatchineha, Inc. vs. State Department of Environmental Regulation, 580 So. 2d 267, 272 (Fla. 1st DCA 1991); Town of Palm Beach vs. Department of Natural Resources,

577 So. 2d 1383, 1387 (Fla. 4th DCA 1991). Petitioners have standing based on their allegations that the proposed exemption would impact their property adjacent to the replacement dock coupled with the fact that the alleged impact is a type that the statute and administrative hearings were designed to address.

1. Christner argues that the petition requesting an administrative hearing is facially deficient. Christner argues that the petition does not contain a statement of how and when Petitioners received notice of the proposed agency action and that the petition should be dismissed.

2. Christner's motion to dismiss is denied. Notice of agency action means written notice of agency action. Rule 62- 103.155(6)(a). The petition alleges that Petitioners never

   received any written notice of the Department's action, and the parties stipulated at the hearing that the Department never provided Petitioners with written notice of the Department's proposed exemption.

3. Rule 62-103.155(3)(b) provides, in relevant part, that failure to file a petition after receipt of notice of proposed agency action waives any right to request an administrative hearing. Christner contends that Petitioners waived their right to request an administrative hearing by failing to file their petition within 21 days after they received notice of the proposed exemption.

4. Petitioners did not waive their right to an administrative hearing. Since Petitioners never received the written notice required as a prerequisite to waiver, the waiver authorized in Rule 62-103.155(3)(b) does not operate against Petitioners.

5. Christner's argument that actual notice of the Department's proposed agency action is sufficient to support waiver is rejected. Henry vs. Department of Administration, Division of Retirement, 431 So. 2d 677 (Fla. 1st DCA 1983). Christner failed to show that Petitioners:

   . . . received notice sufficient to commence the running of the time period within which review must be sought. The requirements for such notice are objective rather than subjective in nature, and apply regardless of actual or presumed notice of agency action.

   Henry, 431 So. 2d at 679.

6. The Department must give Petitioners a clear point of entry before a determination can be made that Petitioners waived their right to challenge the proposed exemption. Florida League of Cities, Inc. et al vs. State of Florida, et al, 586 So. 2d 397 (Fla. 1st DCA 1991). The Department never gave Petitioners a clear point of entry.

7. Christner argues that waiver operates against Petitioners because counsel for Petitioners should have known of the time requirements for filing a petition. Christner's argument is rejected. A different standard does not arise when an attorney is involved. Wahlquist vs. School Board of Liberty County, 423 So. 2d 471, 473 (Fla. 1st DCA 1982).

8. Even if Petitioners had failed to timely file a request for hearing after receiving written notice, the alleged failure to timely file a request for hearing was the result of being misled or lulled into inaction by erroneous information provided by Department employees that there was no remedy. The time requirements for filing the petition were tolled during the period in which the Department lulled Petitioners into inaction. Machules vs. Department of Administration, 523 So. 2d 1132 (Fla. 1988).

9. Christner argues that Petitioners should be estopped from challenging the proposed exemption. Christner contends that Petitioners failed to make inquiry of their right to a hearing within the time prescribed by rule.

10. Petitioners are not estopped from challenging the proposed exemption. The evidence does not support Christner's asserted estoppel.

11. The evidence shows that Petitioners complied with the requirements for reasonable inquiry in Rule 62-103.155(5). Within 14 days of the proposed exemption, Petitioners' attorney in fact made reasonable inquiry into the proposed exemption. Petitioners' attorney did not pursue the matter further because Department employees provided erroneous information.

12. Christner contends that the Department is estopped from revisiting the proposed exemption. Christner's claim of estoppel against the Department is rejected.

13. The requirements for estoppel against the Department are not satisfied in this case. Christner failed to show an inquiry as a result of changing his position in reliance upon another party's action or inaction. Gottesman vs. Gottesman, 202 So. 2d 775 (Fla. 3d DCA 1967); Boynton Beach State Bank vs. Wythe, 126 So. 2d 283 (Fla. 2d DCA 1961).

14. There is no evidence that Christner changed his position to his detriment in reliance on any act or omission on the part of the Department. The only action Christner took was to build the replacement dock without a permit. Christner did not take that action, or refrain from that action, in reliance upon any act or omission by the Department.

15. The Department did fail to give adequate notice to Petitioners. That failure by the Department extended the time in

    which a petition for administrative hearing could be filed. However, Christner had already constructed the replacement dock. The failure to give adequate notice to Petitioners did not affect Christner's decision to build the replacement dock.

16. Petitioners did not initiate and pursue this case for an improper purpose. Petitioners did not participate in this proceeding primarily to harass, to cause unnecessary delay, or to needlessly increase the cost of securing approval of the exemption, or for some other frivolous purpose. Section 120.595(1)(e)(1). Petitioners presented justiciable issues of law and fact and a reasonably clear justification for participating in this proceeding. Mercedes Lighting vs. Department of General Services, 560 So. 2d 272, 278 (Fla. 1st DCA 1990).

17. The subjective intent or motives of Petitioners for pursuing their statutory rights in this proceeding are factors which are not properly considered in determining whether Petitioners participated in this proceeding for an improper purpose. Courts should not delve into a party's subjective intent or a good faith-bad faith analysis. Valdez vs. State, 194 So 388, 394 (Fla. 1940); Mercedes Lighting, 560 So. 2d at 278.

18. The burden of proof is on Christner. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation vs. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA

    1977). Christner must show by a preponderance of evidence that he satisfies the requirements for an exemption. J.W.C. Company, Inc., 396 So. 2d at 778; Balino, 348 So. 2d at 349.

19. Christner satisfied his burden of proof. Christner showed by a preponderance of the evidence that the replacement dock satisfies the requirements for an exemption in Section 403.813(2) and Rule 40C-4.051(11)(i)3.

20. Section 403.813(2) provides that no permit is required for certain projects including:

(d) The replacement . . . of existing docks, except that no fill material is to be used and provided that the replacement . . . is in the same location and of the same configuration and dimensions as the dock being replaced. . . .

The replacement dock satisfies the foregoing statutory requirements. The replacement dock required no prohibited fill and is located within the same footprint as that of the original dock.

44. Rules 62-312.050(1)(i) and 40C-4.051(11)(i) both

require, inter alia, that the existing dock must be functional before the replacement dock is entitled to an exemption. The requirement that the dock must be functional does not appear in the statute authorizing the exemption.

1. Neither party cited any authority to support a requirement by rule that does not appear in the statute, and the Department did not explicate the reasons for the requirement through competent and substantial evidence in the record or

   through supporting case law. However, Christner did not challenge the rule.

2. Assuming arguendo that the functionality requirement imposed by rule is a valid exercise of delegated legislative authority, the existing dock was not functional when Christner constructed the replacement dock. However, Rule 40C- 4.051(11)(i)3. provides in relevant part that the replacement dock for a non-functional existing dock is entitled to an exemption if:

   . . . the dock or mooring pile has been rendered nonfunctional by a discrete event such as a storm, flood, accident, or fire.

3. The term "discrete event" is not defined by rule or statute. Rule 40C-4.051(11)(i)3. provides several examples of a discrete event, such as a storm, flood, accident, or fire, but does not limit a discrete event to those examples.

4. The Department asserts in its PRO that a discrete event imposes two implied conditions for an exemption. First, the discrete event must be a storm. Second, the storm must be a storm of sufficient strength. As the Department argues in its PRO:

   . . . The only other basis, under Rules 40C- 4.051(11)(i) and 62.-312.050(1)(l) (sic)

   . . ., upon which an exemption could be granted is if . . . Christner could prove that the Dock was rendered non-functional by a discrete storm. Here, contradictory testimony existed on whether any storm of sufficient strength occurred in late 1992.

   In addition, . . . Christner told none of the relevant parties that a storm had caused the damage to the Dock and the November 1992

   aerial photographs revealed that no other dock in the vicinity was damaged by the alleged storm. . . . (Emphasis supplied.)

   PRO at paragraph 57, page 16. See also paragraphs 18 and 19,

   pages 6-7.

5. The Department does not explain whether the implied conditions it urges for Rule 40C-4.051(11)(i) are generally applicable in all cases, applicable only in this case, and under what circumstances the conditions apply to other cases. If the conditions imposed by the Department's interpretation of its existing rule are generally applicable in all cases, the Department must first promulgate the conditions in accordance with statutory rulemaking requirements. McDonald vs. Department of Banking and Finance, 346 So. 2d 569, 581 (Fla. 1st DCA 1977).

6. Even if the two implied conditions asserted by the Department are not generally applicable, the conditions may have the effect of amending the express language of its existing rule by limiting a discrete event to a storm of a prescribed strength.

   An amendment of an existing rule is itself a rule that must comply with statutory rulemaking requirements. Sections 120.52(16) and 120.54(1).

7. Assuming arguendo that the two implied conditions urged by the Department neither satisfy the test of general applicability nor amend an existing rule, the Department may impose its implied conditions in this case and future cases as incipient agency policy, i.e., "non-rule policy", without

   complying with statutory rulemaking requirements. As the court explained in McDonald:

   While the Florida APA thus requires rulemaking for policy statements of general applicability, it also recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases. (Emphasis not supplied.)

   * * *

   For the Section 120.54 rulemaking procedures are imposed only on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. . . . (Emphasis not supplied.)

8. While the Department need not promulgate incipient policy in accordance with statutory rulemaking requirements, the Department must comply with essential due process requirements when applying incipient policy in a particular case. In McDonald, the court explained:

   . . . Three due process checks to prevent arbitrary agency action are the requirements that reasons be stated for all action taken or omitted, that reasons be supported by 'the record', and that specific judicial review procedures allow the courts to remedy defects of substance. . . .

   
   

   Failure by the agency to expose and elucidate its reasons for discretionary action will, on judicial review, result in the relief authorized by Section 120.68(13): an order requiring or setting aside agency action, remanding the case for further proceedings or deciding the case, otherwise redressing the effects of official action wrongfully taken or withheld, or providing interlocutory relief.

   McDonald, 346 So. 2d at 584.

9. The Department failed to adduce competent and substantial evidence on the record that exposes and elucidates the Department's reasons for interpreting Rule 40C-4.051(11)(i)3. in a manner that imposes two implied conditions for an exemption that are not expressed in either the rule or in the authorizing statute. The Department's own employees testified that the term "discrete event" is not a defined term and that its interpretation and application is left to agency discretion in each case.

10. One Department witness testified that wind and high water can be a discrete event. He testified that wind and high water could damage the original dock without damaging newer and better constructed docks in the immediate vicinity. He testified that it is unlikely the original dock would have suffered such damage without a discrete event. That type of evidence does not expose and elucidate the Department's reasons for agency discretion requiring Christner's original dock to be rendered

    non-functional by: a storm; of sufficient strength.

11. The record does not explicate the Department's reasons for its construction of the term "discrete event" in this case. The record is replete with contradictory evidence of when the original dock became non-functional but contains only a modicum of evidence to explicate any interpretation of a discrete event.

12. Christner and his wife testified that the original dock was rendered non-functional by a discrete event which they

    characterized as a storm. The Department did not define a storm with competent and substantial evidence entered on the record.

    A Department witness testified that a "discrete event" includes wind and high water. That evidence is not only credible and persuasive but comprises substantially all of the evidence that explains and elucidates a "discrete event."

13. Petitioners presented the testimony of several witnesses and submitted numerous pictures and a video tape purporting to show that the original dock was non-functional as early as October 1991 and that planking added by Christner was inadequate to satisfy the requirement for functionality. That evidence does not refute credible and persuasive evidence that the non-functional condition of the original dock was caused by a discrete event or a series of discrete events, any one of which may have been sufficient to render the dock non-functional.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department enter a Final Order denying Petitioner's challenge to the proposed exemption.

DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.

ENDNOTES

1/ All chapter and section references are to Florida Statutes (1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Daniel B. Fowler, Esquire Patricia Loy-Bond, Esquire Markey and Fowler, P.A.

410 West Merritt Avenue

Merritt Island, Florida 32954-1081

Kenneth C. Crooks, Esquire Dean, Mead, Spielvogel, Goldman

and Boyd

7380 Murrell Road, Suite 100

Melbourne, Florida 32940

Thomas I. Mayton, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-002152

Orders for Case No: 97-002152