DEP FO #09-1046

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

FINAL ORDER

On September 16, 2009, an Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO") to the Department of Environmental Protection ("DEP" or "Department") in this administrative proceeding. A copy of the RO is attached hereto as Exhibit A. The RO indicates that copies were sent to the Qualified Representative for the Petitioner, Goose Bayou Homeowner's Association ("Petitioner"), and counsel for the Department.1 No party filed any exceptions to the RO. The matter is now before the Secretary of DEP for final agency action.

1 The RO indicates "Hillary Copeland, Esquire" as co-counsel for the Department. However, Ms. Copeland is a law student who the ALJ accepted as a Qualified Representative for the Department during the proceeding at DOAH. (Hearing Transcript page 4 and http://www.doah.state.fl.us/docdoc/2009/001725/09001725M-071609- 15452845.PDF).

Filed November 17, 2009 1:04 PM Division of Administrative Hearings.

BACKGROUND

The Petitioner requested a maintenance dredging exemption from wetland resource permitting under Rule 62-312.050(1)(e), Florida Administrative Code. The Petitioner proposed to maintenance dredge two channels in Goose Bayou on the two ends of a U-shaped upland cut canal adjacent to Goose Bayou in Bay County, Florida. On December 4, 2007, the Department determined that the Petitioner's proposal was not exempt from wetland resource permitting requirements and gave notice of intent to deny the Petitioner's request. On March 27, 2009, the Petitioner filed a second amended petition for an administrative hearing that the Department referred to DOAH. An ALJ was appointed and the matter was scheduled for a final hearing on May 27, 2009, but the parties jointly moved for an abeyance, which was granted. On July 10, 2009, the parties requested a final hearing, which was scheduled for July 29, 2009, by video teleconference.

The parties filed a Joint Pre-Hearing Stipulation on July 23, 2009, which was amended before the final hearing. The Amended Joint Pre-Hearing Stipulation was filed after the hearing, on July 31, 2009. The hearing was conducted on July 29, 2009, and the ALJ subsequently issued his RO on September 16, 2009.

RECOMMENDED ORDER

The ALJ recommended that the Department deny the Petitioner's maintenance dredging exemption request. (RO p. 8). He concluded that the Petitioner did not prove that the channels sought to be maintenance dredged were previously dredged and maintained, or that previous dredging was "pursuant to all necessary state permits." Fla. Admin. Code R. 62-312.050(1)(e). (RO 1111 3, 11, 12, 16).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

Section 120.57(1)(I), Florida Statutes, prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of an ALJ, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1)(I), Fla. Stat. (2008); Charlotte County v. IMC Phosphates Co., 34 Fla. L. Weekly D357 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007). The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence (quantity) as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287, 289 n.3 (Fla. 5th DCA 1996).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prat., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands County Sch. Bd., 652 So.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related matters are within the province of the ALJ, as the "fact-finder'' in these administrative proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Also, the ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

absent a complete lack of any competent substantial evidence of record supporting this decision. See e.g., Collier Med. Ctr. v. State, Dep't of HRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983).

Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 So.2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations Comm'n v.

Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public

Employee Council, 79 v. Daniels, 646 So.2d 813,816 (Fla. 1st DCA 1994). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v.

Dep'tofEnvtl. Prat., 668 So.2d 209,212 (Fla. 1st DCA 1996).

CONCLUSION

The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254,256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003). However, even when exceptions are not filed, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction. See§ 120.57(1)(1), Fla. Stat. 2009; Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994).

Having considered the applicable law and standards of review in light of the findings and conclusions set forth in the RO, and being otherwise duly advised, it is

ORDERED that:

1. The Recommended Order (Exhibit A) is adopted in its entirety and incorporated herein by reference.

2. The Petitioner's application for an exemption from wetland resource permitting requirements under Fla. Admin. Code R. 62-312.050(1)(e) in file number 03- 0283867-003 is DENIED.

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.11O and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

M.S. 35, Tallahassee, Florida 32399-3000; 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 Final Order is filed

5

with the clerk of the Department. r'

DONE AND ORDERED this ..2.1..:_ day of October, 2009, in Tallahassee, Florida.

,Ii--

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:

Bill Britton

Goose Bayou Homeowner's Association 4002 Valencia Court

Panama City, Florida 32405-3221 by electronic filing to:

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 and by hand delivery to:

Brynna J. Ross, Esquire

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this '2,- day of October, 2009.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

FRANCINE M. FFOLKES

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 09-001725

Orders for Case No: 09-001725