STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF ENVIRONMENTAL PROTECTION and BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, | ) ) ) ) | ||
) | |||
Petitioners, | ) | Case | No. 10-0521EF |
) | |||
vs. | ) | ||
) | |||
DAVID H. FORT AND CLAUDIA A. | ) | ||
FORT, | ) | ||
) | |||
Respondents. | ) | ||
| ) | ||
RECOMMENDED ORDER
The final hearing in this case was held on June 22, 2010, in St. Augustine, Florida, before Bram D. E. Canter, Administrative Law Judge of the Division of Administrative Hearings ("DOAH").
APEARANCES
For Petitioners: Christine M. Francescani, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
For Respondents: Wayne E. Flowers, Esquire
Lewis, Longman and Walker, P.A.
245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202
STATEMENT OF THE ISSUES
The issues in this case are whether Respondents, David H. Fort and Claudia A. Fort, violated certain statutes and rules of Petitioners, Department of Environmental Protection ("Department") and Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), related to the construction of a dock and boathouse and the use of sovereignty submerged lands, as alleged in the Amended Notice of Violation and Orders for Corrective Action ("Amended NOV") and, if so, whether the administrative fines, investigative costs, and corrective actions sought by Petitioners should be imposed against Respondents.
PRELIMINARY STATEMENT
On October 21, 2009, the Department issued a five-count NOV against Respondents, charging them with violations of law associated with a dock and boathouse constructed by Respondents. Respondents filed a Petition for Administrative Hearing to challenge the NOV, which the Department dismissed with leave to file an amended petition. Respondents filed an amended petition, which the Department referred to DOAH to conduct an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes (2009).1/ Before the final hearing and without objection, Petitioners filed an Amended NOV.
At the final hearing, Petitioners presented the testimony of Michael Savage; Scott Cannard, accepted as an expert in architecture and building design; and Mathew Kershner.
Petitioners' Exhibits 1 through 31 were admitted into evidence. Respondents presented the testimony of Eric Calkins, David Fort, and Michael Savage. Respondents also presented the deposition testimony of Tracy Schilling. Respondents' Exhibits 1 through 8 were admitted into evidence. Joint Exhibits 1 through 4 were admitted into evidence. Official recognition was taken of Florida Administrative Code Chapters 18-14, 18-21, and 62-302.
The one-volume Transcript of the final hearing was filed with DOAH. The parties submitted proposed recommended orders that were carefully considered in the preparation of this
Recommended Order.
The Parties
FINDINGS OF FACT
The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapter 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62.
The Trustees are responsible for state-owned sovereignty submerged lands and ensuring that such lands are managed for the benefit of the citizens of Florida pursuant to
Chapter 253, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 18.
The Department performs all staff duties and functions for the Trustees related to the administration of state lands. See § 253.002, Fla. Stat.
David and Claudia Fort own property located at 7875 A1A South, St. Augustine, St. Johns County, Florida. The property is located adjacent to the Matanzas River, a part of the Intracoastal Waterway.
The Trustees own the lands lying below the mean high water line of the Matanzas River.
The Permit and Lease
Harbor Engineering (“Harbor”), a marine engineering firm, acted as Respondents' agent in preparing plans and applying for the permit and lease to construct a dock and boathouse at the property.
Harbor prepared and submitted to the Department five sketches or drawings showing various layouts, cross sections, and elevations of the proposed dock and boathouse. These drawings were made a part of the permit and became conditions of the permit.
The permit drawings show one large covered slip, two smaller covered slips for mooring of jet skis, and a two-level boathouse. Although some of the elevations do not show walls,
it is apparent that this was for the purpose of showing interior areas, such as the slips.
Although difficult to see, one drawing indicates a doorway on the lower level.
The elevations show window openings or "cutouts" in the walls of the boathouse, but do not indicate framed window panes. The drawings do not create a necessary conclusion that the cutouts are intended to be finished with framed window panes.
On January 13, 2004, the Department issued Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 55-216127-002-ES ("permit"), which authorized Respondents to construct a dock and boathouse in the Mantanzas River adjacent to Respondents' property.
General Condition (a) of the permit states:
All activities shall be implemented as set forth in the plans, specifications and performance criteria as approved by this permit. Any deviation from the permitted activity and the conditions for undertaking that activity shall constitute a violation of the permit.
On February 24, 2004, the Trustees issued Sovereignty Submerged Lands Lease No. 550034552 ("lease") to Respondents, authorizing the use of sovereignty submerged lands for a 3-slip docking facility and boathouse "as shown and conditioned" in the
Department permit, which was incorporated into and made a part of the lease.2/
Paragraph 1 of the lease states that the dock and boathouse are "exclusively to be used for mooring of recreational vessels in conjunction with an upland single-family residence."
Paragraph 7 of the lease states in pertinent part:
This lease is given to the Lessee to use or occupy the leased premises only for those activities specified herein and as conditioned by the Department of Environmental Protection, Environmental Resource Permit. The Lessee shall not change or add to the approved use of the leased premises as defined herein . . ., shall not change activities in any manner that may have an environmental impact that was not considered in the original authorization . . . without first obtaining
. . . the Lessor's written authorization in the form of a modified lease.
Paragraph 26 of the lease states that the lessee shall ensure that no "structures whose use is not water-dependant shall be erected or conducted over sovereignty submerged lands without prior written consent from the Lessor."
The term "water dependent activity" is defined in Florida Administrative Code Rule 18-21.003(71):
"Water dependent activity" means an activity which can only be conducted on, in, over, or adjacent to water area because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation, energy
production or transmission, or source of water, and where the use of the water or sovereign submerged lands is an integral part of the activity.
The lease was issued for a term of five years. It expired on January 12, 2009.
Enforcement History
Respondents began construction of the dock and boathouse in February 2004.
A Department employee, Michael Savage, inspected the dock and boathouse on June 8, 2004, while construction was in progress. Savage said he was responding to an anonymous complaint about Respondents' dock and boathouse, but Savage did not explain the nature of the complaint.
Savage had the permit drawings with him during the inspection. The dock pilings were in place as well as the "shell" of the boathouse. The structure had some cutouts for windows, but no windows with panes were installed. Savage measured the structure.
Savage did not see anything during his June 8, 2004, inspection that caused him to believe the structure was not being constructed in compliance with the permit, except that a copy of the permit had not been posted at the site as required by the permit.
Savage said he called Respondents, left a voice message, and talked to the builder. The Department's on-line enforcement record for the June 8, 2004, inspection indicates that a call was made and a message was left: "Need to have permit posted/erosion control in place."
Savage and another Department employee inspected the dock and boathouse again on July 9, 2004. Savage had the permit drawings with him during this second inspection.
Three outside walls were in place and the second level of the boathouse was under construction. No window framing or glass had been installed. An overhang, extending over the northwest corner of the structure, was in place.
Savage had some concern about whether the locations of the window cutouts were in compliance with the permit. In all other respects, he thought that the construction was in compliance.
The structure shown in the photographs taken on
July 9, 2004, looks like a small house. It does not look like a structure intended only to provide shelter to a boat slip.
The Department did not communicate with Respondents about the July 9, 2004, inspection.
The Department's on-line enforcement record for the July 9, 2004, inspection includes the entry "In compliance."
General Condition (j) of the permit requires that within 30 days after completion of construction of the permitted system, the permittee must submit a written statement of completion using an As Built Certification Form ("as-built"). On the as-built, the permittee is required to note and explain any “substantial deviations."
Instead of submitting a single as-built following the completion of the dock and boathouse, Respondents submitted three as-builts. David Fort said his purpose was to keep the Department informed about the progress of the project.
On September 8, 2004, the Department received the first of Respondent's as-builts. On the as-built form, David Fort indicated that the work was substantially completed. Although Fort did not intend to mislead the Department, the construction was not substantially completed at that time. A substantial amount of work remained to be done.
Savage and another Department employee inspected the dock and boathouse on September 14, 2004. Savage had the permit drawings with him for this inspection.
The boathouse was not changed much from its appearance in July 2004. It had no windows or doors. Savage believed that the project was in compliance with the permit and later made a note to that effect on a sheet containing three photographs that were taken during the inspection. The Department's on-line
enforcement record for the September 14, 2004, inspection indicates that Savage met with the builder and includes the entries "In Compliance" and "Built as Permitted."
Matthew Kershner, Compliance Enforcement Manager for the Department, accompanied Savage on one of the inspections of the dock and boathouse. Kershner placed a telephone call to David Fort and said his purpose in calling was to respond to a complaint from a neighbor "about a large dock being constructed."
Kershner told Fort that Fort could not "climatize" the boathouse. Kershner did not explain at the final hearing what he meant by the term "climatize," nor did he give any other details about his conversation with Fort. It is reasonable to infer from the evidence, however, that Kershner meant that Fort was not permitted to provide artificial heating and air- conditioning in the boathouse.
Fort called Kershner later and asked if he could install fans and Kershner told Fort that fans would be acceptable.
It is reasonable to infer from the photographic evidence, alone, that Kershner knew in September 2004 that the apparent plan of construction was to at least partially enclose the boathouse. However, Kershner told Fort that turning the dock into a residence or "enclosing it" was not permitted.
The only reasonable meaning to ascribe to a statement that a structure cannot be enclosed is that there must be some permanent, unobstructed way to pass in and out of the structure. A room surrounded by walls, with a door, is an enclosed structure.
In November 2004, the first windows were installed in the boathouse. The windows were specially made to withstand severe weather. Respondents paid $120,000.00 for the windows.
On January 7, 2005, the Department received the second as-built from Respondents. Hand-written on the form is “windows installed 1-6-05.”
Another Department employee, Tracy Schilling, inspected the dock and boathouse in January 2005. Schilling said the inspection was in response to a complaint from a neighbor that the dock was "extremely large" and that it was blocking the neighbor's view.
Schilling reviewed the permit drawings before her inspection. The construction was still incomplete. There was framing work underway on the first floor interior of the boathouse. Schilling said it was apparent from the framing that the boathouse would have "separate rooms." Schilling believed that the dock and boathouse were in compliance with the permit.
On April 13, 2005, the Department received the third as-built from Respondents. On June 28, 2005, Schilling and
another Department employee inspected the dock and boathouse again. Photographs taken during the inspection show windows were installed. Framing was completed in the upstairs portion of the structure, creating two rooms, and interior walls on the first floor were finished. The rooms were at least partially furnished with chairs, tables, and a lamp.
During the June 2005 inspection, Schilling observed a fiberglass shower stall, still in its box, on the dock. Schilling believed that the installation of a shower stall would violate the prohibitions in the permit and lease against structures that were not water-dependent. The Department's notes for the June 2005 inspection indicate “Minor Out-of- compliance.”
Schilling said she did not consider the windows to be out of compliance because window openings were shown on the permit drawings.
On the first sheet of photographs taken during the June 2005 inspection (Respondents' Exhibit 3B), someone has written, "This is sliding over into non-water dependent category
- Let's talk." However, the record does not include any explanation of this handwritten comment.
Schilling sent a letter to Respondents on August 29, 2005, informing Respondents that an “item” was found to be non- compliant with Condition 26 of Respondents’ permit that
prohibits structures whose use is not water-dependent and that such structures must be removed within 30 days. The letter did not identify the structure that was not water-dependent.
On September 7, 2005, David Fort called Schilling about the August 28 letter. Schilling told Fort that the “item” referred to in the letter was the shower stall. She told Fort that plumbing and running water were not allowed. Fort told Schilling that he was not going to install the shower.
In February or March, 2006, Schilling called David Fort to request permission for Schilling and some Department employees from the Division of State Lands in Tallahassee to inspect the dock and boathouse. Schilling said State Lands employees occasionally make site visits to inspect unusual docks and marinas "that may have issues." She suggested the inspection of Respondents' boathouse because it was the "Taj Mahal of docks."
The inspection was conducted by Schilling and three other Department employees. Schilling had a copy of the lease with her. The exterior construction of the boathouse was complete and the interior work was substantially complete. Schilling believed the structure was built in compliance with the permit.
Respondents did not submit an as-built to reflect the final construction of the dock and boathouse.
The Department's enforcement action arose as a result of Savage's September 3, 2009, inspection of the dock and boathouse. It was during this inspection when Savage first became aware of the enclosed rooms of the boathouse. He observed a children's playroom with carpeting, lighting, an air conditioning unit, cable for television, and shelves. These structures and uses are not water-dependent.
Savage observed another room in the boathouse that contained an air conditioner or dehumidifier, refrigerator, kitchen-style cabinetry, glass-paned windows, kitchen-style sink connected to a water supply, television, and a microwave oven. These structures and uses are not water-dependent.
Savage observed another room with a water heater and a shower stall. The room also was being used to store cleaning materials and personal property. These structures and uses are not water-dependent.
Savaged observed electrical wiring throughout the boathouse. The Department allows electrical wiring only for water-dependent uses, such as an electric boatlift or for emergency lighting.
On the dock adjacent to the large mooring slip, Savage observed a sink connected to a water supply, a glass-paned window, and a door that enclosed a lower level room. Savage did not think the sink was "representative of a fish cleaning
station." His objection to the sink was that it had more than one basin and did not have a sign identifying it as a fish cleaning station.
Also on the dock in the area of the slips, Savage observed music speakers installed on the wall, doors enclosing rooms, and a closet which was being used to store fishing reels and gear.
There is a pump stored next to the boat lift in the boat storage area that pumps water out of the Matanzas River into a tank for keeping live bait.
Respondents admitted that they had installed structures at the dock and boathouse that were not authorized by the permit. These unauthorized structures are a stairway and ramp to the beach, a floating platform on pilings with a metal gangway, and an "overhang" (that portion of the upper level deck on the north side of the boathouse that extends 1.5 feet beyond the outer wall of the lower level).
The Department incurred $1,874.00 in investigative costs for investigation and enforcement activities associated with Respondents' dock and boathouse. Respondents did not dispute these costs. They are reasonable costs. Detrimental Reliance
Respondents claim that they relied on the Department's representations following the Department's inspections of the
construction and would not have installed the doors, windows, or other features in the structure if the Department had told Respondents that these structures were not authorized by the permit.
The permit drawings indicate a boathouse with areas that would be semi-enclosed. However, the permit and lease limit this boathouse to a structure for the mooring and protection for boats. The boathouse is not supposed to serve as a residence or a clubhouse. It was unreasonable for Respondents to believe that the permit authorized enclosed rooms and amenities typical of an upland residence with many features that are not water-dependent.
Respondents presented no evidence to show that similar boathouses have been authorized by Department permit.
David Fort's actions showed that he had a complete disregard for the warnings and instructions that he received from the Department. He was told that he could not "climatize" the boathouse. He was told that he could not enclose the boathouse. He was told that he could not install the shower stall. He was told that he could not install plumbing or running water. He was told that he could not use the dock and boathouse for activities that were not water-dependent. Yet he did all of these things anyway. He built certain structures, such as the floating dock and gangway, which he knew were not
authorized by the permit. It is in this context of Fort's apparent intent to do whatever he wanted with the boathouse, no matter what the Department said, that Fort's claims of detrimental reliance must be considered.
The more persuasive evidence does not show that Respondents relied to their detriment on any representation by a Department employee, except for the installation of fans.
David Fort asked a direct question about whether he could install fans, before the fans were installed, and was told by the Department that he could install fans. All of the other structures that are the subject of this case were installed without a prior discussion with the Department or are contrary to instructions given by the Department.
Respondents point out several times that certain structures were in place before a Department inspection, facts which Respondents believe support their arguments about the structures being in compliance with the permit, because the Department saw the structures but did not object to them. Although these facts are relevant to the determination of whether the structures were, in fact and in law, in compliance with the permit, they undermine Respondents' claim of reliance.
Respondents' claim of reliance is not based on any affirmative acts of the Department, but on the Department's silence. The Department's silence caused Respondents to believe
that the Department would not take enforcement action, but the evidence does not show that Respondents relied on the Department's silence to construct or install any of the disputed structures.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding under Sections 120.569, 120.57(1), 253.04(2), and 403.121, Florida Statutes.
Section 403.161(1)(b), Florida Statutes, makes it a violation of Chapter 403 to fail to comply with any rule, order, or permit issued by the Department.
Section 403.121, Florida Statutes, authorizes the Department to commence an administrative action to enforce the requirements of Chapter 403, Florida Statutes.
If the Department has reason to believe a violation has occurred, it may institute an administrative proceeding to establish liability, to recover damages, and to order the prevention, abatement, or control of the conditions creating the violation. See § 403.121(2)(a) and (b), Fla. Stat.
Section 253.77, Florida Statutes, provides that a person may not commence construction or other activity involving the use of sovereign or other lands of the state until the
person has received the required lease, license, easement, or other form of consent authorizing the proposed use.
Sections 253.04(2), Florida Statutes, authorizes the Trustees to take enforcement against persons who have knowingly refused to comply with or willfully violated the provisions of Chapter 253.
Under Florida Administrative Code Rule 18-14.002, a person is subject to a fine of up to $10,000 for each offense constituting a knowing refusal to comply or a willful violation of the provisions of Chapter 253, Florida Statutes. Rule 18- 14.002(4) provides that fines shall be $1,000 to $2,500 for the first offense, and $1,000 to $10,000 for the second and subsequent offenses.
Rule 18-21.004(1)(g) provides that activities on sovereignty lands shall be limited to water-dependent activities unless the Trustees determine that it is in the public interest to allow an exception. The Trustees made no public interest determination regarding any of the disputed structures at Respondents' dock and boathouse.
Petitioners have the burden to prove by a preponderance of the evidence that Respondents have violated the law as charged in the Amended NOV. See § 403.121(d), Fla. Stat.
Count I
Under Count I of the Amended NOV, the Department charges Respondents with failing to comply with General Condition (a) of the permit by failing to construct the dock and boathouse in conformance with the terms and conditions of the permit.
The Amended NOV identifies numerous structures and activities which Petitioners contend were not authorized by Respondents' permit or lease. Respondents admitted that the following structures were not authorized by the permit or lease:
A stairway and ramp to the beach
A floating platform with attached metal gangway
An "overhang" of the upper level deck on the north side of the boathouse beyond the outer wall of the lower level
Petitioners contend that the following additional structures and activities were not authorized by the permit or lease:
A storage closet for fishing tackle at the entrance to the boathouse
Music speakers
A water pump
An enclosed storage room with a shower stall
Enclosed room with television, cable box and hookups, DVD player, refrigerator, sink, cabinets, and countertops
Air-conditioning/heating units
An enclosed "children's room" with shelving
Electrical hardware and infrastructure for activities which are not water-dependent
Windows with window panes
Doors enclosing the boathouse
Petitioners proved by a preponderance of the evidence that Respondents failed to comply with General Condition (a) of the permit.
Petitioners proved by a preponderance of the evidence that Respondents constructed or installed the structures identified in paragraphs 79 and 80, above, which was not authorized by the permit.
Petitioners do not seek an administrative fine under
Count I.
Count II
Under Count II of the Amended NOV, the Trustees charge Respondents with failing to comply with Paragraph 7 of the lease by constructing the stairway and ramp to the beach, the floating platform with attached metal gangway, and the "overhang" of the upper level deck.
Petitioners proved by a preponderance of the evidence that Respondents willfully violated Paragraph 7 of the lease by constructing these structures, which were not authorized by the lease.
Petitioners demand that Respondents pay an administrative fine of $1,500 for the violation of law charged in Count II. The proposed fine is fair and reasonable.
Count III
Under Count III of the Amended NOV, the Trustees charge Respondents with failing to comply with Paragraph 26 of the lease by constructing permanent and floating structures over sovereignty submerged lands without prior consent from the Trustees.
Petitioners proved by a preponderance of the evidence that Respondents willfully violated Paragraph 26 of the lease by constructing the structures identified in paragraph 79 above, which were not authorized by the lease.
Petitioners demand that Respondents pay an administrative fine of $1,500 for the violation of law charged in Count III. The proposed fine is fair and reasonable.
Count IV
Under Count IV of the Amended NOV, the Trustees charge Respondents with failing to comply with Paragraph 26 of the
lease by using the dock and boathouse for activities that are not water-dependent.
Petitioners proved by a preponderance of the evidence that Respondents willfully violated Paragraph 26 of the lease by using the dock and boathouse for activities that are not water- dependent, as described in paragraph 80, above.
Petitioners demand that Respondents pay an administrative fine of $2,000 for the violation of law charged in Count IV. The proposed fine is fair and reasonable.
Count V
Under Count V of the Amended NOV, the Department charges Respondents with the responsibility to pay the Department's investigative costs of $1,874.98.
The Department proved by a preponderance of the evidence that it incurred investigative costs of $1,874.98 and that this amount is reasonable under the circumstances.3/
Equitable Estoppel
Respondents contend that circumstances exist that warrant the application of the doctrine of equitable estoppel to prevent Petitioners from requiring the removal of these structures and from assessing penalties or fines for the construction or installation of these structures. In support of their contention, Respondents cite Reedy Creek v. Department of Environmental Protection, 486 So. 2d. 642 (Fla. 1st DCA 1986),
in which the court identified the elements of equitable estoppel:
a property owner's good faith reliance on
some act or omission of the government and
a substantial change in position or the incurring of excessive obligations and expenses so that it would be highly inequitable and unjust to destroy the right acquired.
Id. at 646. The court went on to state that "[e]quitable estoppel will apply against a state agency, however, only upon a showing of exceptional circumstances." Id. at 647.
In Alachua County v. Cheshire, 603 So. 2d 1334, 1337 (Fla. 1st DCA 1992), the court held that “[i]n addition to the usual elements of estoppel, a party seeking to invoke estoppel against the government must establish affirmative conduct by the government going beyond mere negligence.”
Respondents failed to prove the elements that are necessary to apply the doctrine of equitable estoppel in this case.
Respondents refer repeatedly to the actions of the Department's inspectors as "determinations" that the dock and boathouse were in compliance with the permit. The thoughts of a Department inspector about whether a structure is in compliance with a permit do not amount to agency action comparable to the
issuance of a permit or other agency order. If a Department employee believes a structure is in compliance, that belief will be relevant in a legal proceeding to support an argument that the structure is, in fact and in law, in compliance with a permit, but the Department is not automatically bound by such a belief or "determination" of its employee.
The most important representations and determinations made by Petitioners were set forth as terms and conditions of the permit and lease. These orders clearly prohibited structures, activities, and uses of the dock and boathouse that are not water-dependent.
Faintly indicated in one permit drawing, but not otherwise described in the permit, is a single doorway on the lower level of the boathouse. Respondents' belief that a door was authorized by the permit was not unreasonable. Neither was it unreasonable for the Department to misapprehend the depiction of a doorway. Standing alone, the misunderstanding about the doorway does not create a basis for estopping Petitioners from requiring the removal of the door, because removal of the door would involve minimal expense and would not be otherwise unjust under the circumstances.
Corrective Actions
In the Amended NOV, Petitioners demand, among other things, that Respondents apply to renew the lease, pay all
unpaid lease fees, remove the structures that are not water- dependent, and cease all activities and uses that are not water- dependent. The corrective actions demanded in the Amended NOV are reasonable demands that should be imposed, with the exceptions stated below.
The drawings show window cutouts without framing for panes. It was reasonable for Respondents to believe that these openings could be covered with glass. The Department did not dispute Respondents' testimony about the cost of the windows, which was substantial. As noted by Respondents, there is not much difference between a solid wall of wood and a solid wall of wood and some glass. Although not clearly authorized by the permit, Respondents should not be required to remove the windows.
Respondents should not be required to remove electrical wiring to the dock and boathouse for water-dependent uses and activities. Although the electric pump and tank for bait fish are not depicted or described in the permit, Respondents should not be required to remove them because they are integral to water-dependent activities. Likewise, because electrical lighting to allow safe use of the dock and boathouse for water-dependent activities at night is integral to the water-dependent activities, Respondents should not be required to remove installed lighting.
Respondents should not be required to remove fans because they were installed after the Department informed Respondents that the installation of fans was acceptable.
Although the sink adjacent to the wet slip is not depicted or described in the permit, Respondents should not be required to remove the sink because it can be used as a fish cleaning station, which is a water-dependent structure.
Although the closet for fishing gear is not depicted or described in the permit, Respondents should not be required to remove the closet because its use is integral to a water- dependent activity.
Disposition
Because the Department does not seek an administrative penalty under the Amended NOV, it retains authority to issue a final order on Counts I and V. See
§ 403.121(2)(d), Fla. Stat. The Trustees have final order authority on Counts II through IV. See § 120.57(1)(k), Fla. Stat.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioners issue Final Orders that impose the administrative fines and order the corrective actions set forth in the Amended Notice of Violation and Orders for Corrective Action, dated June 1, 2010, with the modifications stated above.
DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida.
S
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2010.
ENDNOTES
1/ All references to the Florida Statutes are to the 2009 codification.
2/ February 24, 2004, is the date of the last signature on the lease.
3/ In the Amended NOV, Petitioners cite Section 403.141(1), Florida Statutes, as authority for the recovery of the Department's investigative costs. This statute, however, is entitled "Civil liability," and its application to this proceeding is not apparent.
COPIES FURNISHED:
Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A.
245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202
Christine M. Francescani, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35
Tallahassee, Florida 32399-3000
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Mimi Drew, Secretary
Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Tom Beason, General Counsel
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
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.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 27, 2010 | Agency Final Order | |
| Sep. 29, 2010 | Recommended Order | Petitioners proved that Respondents built a dock and boathouse that included structures and uses that were not water-dependent, which was contrary to the terms of the permit and sovereignty lands lease. |
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