STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Petitioner, )
)
vs. ) Case No. 04-3688EF
)
BEN A. LEASURE, )
)
Respondent. )
_______________________________ )
FINAL ORDER
Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on January 19, 2005, in Brooksville, Florida.
APPEARANCES
For Petitioner: Alissa Blank, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
For Respondent: Ben A. Leasure, pro se
5345 Olivet Drive
Dade City, Florida 33525-9019 STATEMENT OF THE ISSUE
The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly
illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
PRELIMINARY STATEMENT
On June 10, 2004, Petitioner, Department of Environmental Protection (Department), filed a Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment (Notice) under Section 403.121(2), Florida Statutes (2004).1 The Notice alleged that in April 2003, the Department conducted an inspection of Respondent's property in Hernando County, Florida, and observed that he had filled approximately 0.17 acres of wetlands without a permit in violation of Florida Administrative Code Rule 62-343.050. The Notice further alleged that this conduct violated Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. For violating the statute and rule, the Department seeks to impose administrative penalties in the amount of $3,000.00, require Respondent to take corrective action, and recover reasonable costs and expenses not less than $500.00 incurred while investigating this matter.
On August 12, 2004, Respondent filed his Petition for Administrative Proceeding (Petition) in which he denied the allegations and requested a hearing to contest the charges. The matter was referred by the Department to the Division of
Administrative Hearings on October 11, 2004, with a request that an administrative law judge be assigned to conduct a hearing. By Notice of Hearing dated October 26, 2004, a final hearing was scheduled on January 20, 2005, in Brooksville, Florida. At Respondent's request, the matter was rescheduled to January 19, 2005, at the same location.
By Order dated November 8, 2004, the undersigned granted the Department's Request for Entry Upon Land for Inspection. Pursuant to that Order, an inspection of Respondent's land was conducted by Department personnel on November 17, 2004.
At the final hearing, the Department presented the testimony of D. Brian Brown, a Department Environmental Specialist III and accepted as an expert; Lee W. Hughes, a Department Environmental Specialist II and accepted as an expert; Eric D. Hickman, a Department Environmental Supervisor and accepted as an expert; William L. Vorstadt, a Department Environmental Manager and accepted as an expert; and Respondent.2 Also, it offered Petitioner's Exhibits 1-11, 13- 25, and 27, which were received in evidence. Respondent testified on his own behalf and presented the testimony of Merwin Sherlin, who is Respondent's pastor, and Simon E. Myers, a long-time friend.3 Also, he offered Respondent's Exhibits 1-7, 8A-C, 9, 10, and 17-19, which were received in evidence. (Except for Exhibit 1, all of Respondent's exhibits
are photographs of the area.) Finally, the undersigned granted the Department's Request for Judicial Notice [Official Recognition] of Florida Administrative Code Chapters 62-302 and 62-340 and Rules 62-4.050, 62-302.700, and 62-340.050. 4
There is no transcript of the hearing. Proposed Findings of Fact and Conclusions of Law were filed by the parties on February 2, 2005, and they have been considered by the undersigned in the preparation of this Final Order.
FINDINGS OF FACT
Based upon all of the evidence, the following findings of fact are determined:
Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41.
In November 1971, Respondent purchased his property
and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond.
On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information.
By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland,
that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters.
A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter.
On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter.
After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to
October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown.
Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter."
By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection,
the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled.
The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property.
Several weeks later, Department personnel again visited the site but could not gain access.
Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property.
Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected
that Respondent had never obtained a permit authorizing any work.
During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated.
On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule.
On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred;
alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed.
On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric
D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property.
Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could
make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred.
The filling poses a threat to the functions of the
land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite.
At hearing, Respondent acknowledged that despite a
warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.)
Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so
(assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes.
Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so.
Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven.
At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is
$550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 403.121, Florida Statutes.
Section 403.121(2), Florida Statutes, prescribes the administrative enforcement process for the Department "to establish liability and to recover damages for any injury to the air, waters, or property . . . of the state caused by any violation." Under that process, the Department is authorized to "institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action." § 403.121(2)(b), Fla. Stat. The process is initiated by "the department's serving of a written notice of violation upon the alleged violator by certified mail." § 403.121(2)(c), Fla. Stat. If a hearing is requested by the alleged violator, "the department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the administrative law judge shall issue a final order on all matters, including the imposition of an administrative penalty." Id.
In Count I of its Notice, the Department has alleged
that Respondent "filled approximately .17 acres of wetlands on property without the required permit." Count II seeks the recovery of "expenses incurred to date while investigating this matter in the amount of not less than $500.00."
The issue in this case is whether Respondent filled wetlands on his property without a permit, in violation of Florida Administrative Code Rule 62-343.050. Paragraph (1) of the rule provides that "a noticed general, standard general, or individual environmental resource permit must be obtained from the Department . . . prior to . . . filling in, on, or over wetlands and other surface waters . . . ." Respondent is also charged with violating Section 403.161(1)(b), Florida Statutes, which makes it unlawful to "violate or fail to comply with any rule . . . adopted . . . by the department pursuant to its lawful authority."
By a preponderance of evidence, the Department has established that the filled area on Respondent's property is wetlands, as defined by statute and rule, and that Respondent did not obtain a permit to fill that area. Therefore, the charge in Count I has been sustained.
Section 403.121(3), Florida Statutes, sets forth the administrative penalties that must be imposed (absent mitigating circumstances) for specified violations. Paragraph (3)(c) provides that "the department shall assess a penalty of
$1,000 for unpermitted or unauthorized dredging and filling .
. . plus $2,000 if the dredging and filling occurs in an . . . Outstanding Florida Water." Therefore, because the filling here occurred in an area connected to an OFW, absent mitigating circumstances, an administrative penalty of
$3000.00 must be imposed.
Section 403.121(10), Florida Statutes, provides the following broad guidelines on the issue of mitigation:
(10) The administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3), subsection (4), and subsection (6) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to and after the discovery of the violation by the department. Upon an affirmative finding that the violation was caused by the circumstances beyond the reasonable control of the respondent and could not have been prevented by the respondent's due diligence, the administrative law judge may further reduce the penalty.
Here, there were no "good faith efforts to comply prior to and after the discovery of the violation by the department." (Had Respondent agreed to remove the fill after the first warning letter was sent, or even after the first inspection, it is likely that an enforcement action would not have been initiated.) For example, the evidence shows that Respondent continued to fill the property even after the first
inspection was made, and when the property was inspected in November 2004, there were two signs on the property stating that clean fill was needed.
At the same time, there was no evidence to show that "the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by the respondent's due diligence." While Respondent may have been well-intentioned in trying to prevent flooding on the backside of his property, there are no circumstances present here which would allow a mitigation of the statutory penalty.7 Compare Department of Environmental Protection v. Holmes Dirt Service, Inc., 864 So. 2d 507 (Fla. 1st DCA 2004)(Benton, J., dissenting)(where competent substantial evidence to show that violations were beyond the landowner's control, order mitigating fine was sustained). Significantly, in his dissent, Judge Benton notes that inadequate financial resources to pay a fine is not a mitigating circumstance contemplated by the statute. Holmes at 508.
Section 403.141(1), Florida Statutes, allows the
Department to recover "the reasonable costs and expenses of the state" in investigating matters such as this. Here, even though the Department has established that its expenses were much higher, it is only seeking recovery of $500.00. That
amount was not contested and is found to be reasonable.
Finally, in its Proposed Final Order, the Department has suggested specific corrective action that should be taken by Respondent, which appears to be reasonable and is hereby approved. (Only the broad framework of corrective action - removing the fill - was addressed at the final hearing.) More specifically, Respondent shall comply with the following requirements:
Comply with all Department rules regarding dredging and filling within surface waters or wetlands. He shall correct and address all violations in the time periods below and shall immediately comply with all applicable rules in Florida Administrative Code Chapters 62-340 and 62- 343.
Effective immediately and hereafter he shall not conduct any dredging, filling, or construction activities on or within the landward extent of waters of the State without first obtaining a valid Department permit or written notification from the Department that the activities appear to be exempt as proposed from Department permitting requirements.
Notify the Department at least 48 hours prior to the commencement of work under this Final Order.
Prior to beginning removal of unauthorized fill, he shall properly install and maintain sedimentation and erosion control measures (as indicated in Figure 1 attached to this Final Order) around the perimeter of the area to be restored. The sedimentation and erosion control measures such as staked hay bales
and/or silt screens shall remain in place for the duration of the restoration activities to control turbidity and protect adjacent wetlands. Respondent shall be responsible for inspecting and maintaining sedimentation and erosion control measures so that no violations of state water quality standards occur outside the restoration area.
Within 30 days of the effective date of this Order he shall remove the approximate
0.17 acres of fill from the wetland area indicated on Figure 1. The material shall be placed in an upland location that will not discharge into wetlands or surface waters of the State.
Once the unauthorized fill has been removed, he shall restore any damage to the wetlands by reestablishing the preexisting elevations and allowing natural re- vegetation to occur within the restoration area. Any restoration required pursuant to this paragraph must be completed within 10 days of the removal of fill as outlined in paragraph 5.
Allow all authorized representatives of the Department access the property at reasonable times for the purpose of determining compliance with the terms of this Order and the rules and statutes of the Department.
Within 30 days of completing the corrective action described within paragraphs 3, 4, 5, and 6 he shall:
Provide written notification to the Department that the corrective actions have been completed. A site inspection will be scheduled to verify that all of the restoration actions have been satisfactorily accomplished.
Submit enough color photographs to show
the entire completed restoration area taken from fixed reference points.
Submit a plan view drawing that clearly shows the locations from which the photographs were taken.
Within 30 days of the effective date of this Order, pay $3,000.00 to the Department for administrative penalties imposed in the Notice of Violation. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include OGC Case No. 04-0308E and the notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Florida Department of Environmental Protection, ATTN: David Bryon Brown, 3804 Coconut Palm Drive, Tampa, Florida 33619.
Within 30 days of the effective date of this Order pay $500.00 to the Department for costs and expenses. Payment shall be made by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the OGC Case Number 04- 0308E and the notation "Ecosystem Management and Restoration Trust Fund."
The payment shall be sent to the Florida Department of Environmental Protection, ATTN: David Byron Brown, 3804 Coconut Palm Drive, Tampa, Florida 33619.
Respondent may, of course, seek clarifying advice from the Department, if necessary, regarding these conditions.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the charges in the Notice of Violation, Orders for Corrective Action, and Civil Penalty Assessment are
sustained, and Respondent shall pay the administrative fine and costs and take the corrective action described above.
DONE AND ORDERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida.
S
DONALD R. ALEXANDER
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2005.
ENDNOTES
1/ All future references are to Florida Statutes (2004). 2/ Besides being called as a witness for the Department,
Respondent also testified on his own behalf during his case-in- chief. Although Respondent objected to being called as a witness by the Department, implying that perhaps a Fifth Amendment privilege might apply, his deposition had been taken prior to the hearing (at which time essentially the same questions were asked) and no assertion of privilege was made at that time. Assuming, but not deciding, that a Fifth Amendment privilege may apply in this type of quasi-penal proceeding, Respondent has waived that privilege by submitting to the deposition and testifying on his own behalf at the final hearing. In any event, the Department has substantiated the
charges even if Respondent's testimony during the Department's case-in-chief is disregarded.
3/ Pastor Sherlin and Mr. Myers generally testified that
Respondent is a person of integrity and has a reputation for telling the truth. Neither witness had any knowledge about the specific issues in this case.
4/ On February 16, 2005, Mr. William E. Sanderson filed a letter on behalf of Respondent. Because the record in this matter was closed on January 19, 2005, the letter has not been considered.
5/ The filled area is rectangular in shape and measures approximately 235 feet by 42 feet by 33 feet, or around 8,800 square feet.
6/ Respondent cited no authority for the proposition that simply because wetlands are zoned agricultural, they are exempt from the Department's jurisdiction. Moreover, there was no proof that the filled area was being used for agricultural purposes.
7/ The circumstances under which a fine may be mitigated are quite specific. First, there must be a good faith effort to comply "prior to and after the discovery of the violation by the department." Here, Respondent continued filling his land even after a warning letter was sent. Second, the violation must be caused by circumstances beyond the reasonable control of the landowner. While the flooding was not within Respondent's control, the filling was. Third, it must be shown that the violation could not have been prevented by Respondent's due diligence. Had Respondent used due diligence, he would have sought the Department's advice as to what actions were lawful, especially after being told as early as 1986 that the filling may be illegal.
COPIES FURNISHED:
Alissa Blank, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Ben A. Leasure 5345 Olivet Drive
Dade City, Florida 33523-9019
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
•
[ ::!l!n.'.lld
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 18, 2005 | DOAH Final Order | Landowner was found guilty of illegally filling wetlands without a permit. Because of no mitigating circumstances present, a statutory fine was imposed. |
