FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION

MARJORY STONEMAN DOUGLAS BUILDING 3900 COMMONWEALTH BOULEVARD

TALLAHASSEE, FLORIDA 32399-3000

RICK SCOTT GOVERNOR

HERSCHEL T. VINYARD JR.

SECRETARY

September 10, 2013

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Re: Robert V. Kriegel, et al vs. Mahogany Mill Owners Association & DEP DOAH Case No.: 13-0686, et al

OGC Case No.: 13-0807, et al Dear Clerk:

Attached for filing are the following documents:

1. Agency Final Order

2. Petitioners’ Exceptions to the Recommended Order

3. DEP’s Exceptions to the Recommended Order

4. Mahogany Mill Owners Association’s Response to Petitioners Exceptions to the Recommended Order

5. DEP’s Response to Petitioners Exceptions to the Recommended Order

If you have any questions, please do not hesitate to contact me at 245-2212 or lea.crandall@dep.state.fl.us.

Sincerely,

Lea Crandall

Lea Crandall Agency Clerk

www.dep.state.fl.us

Filed September 10, 2013 10:46 AM Division of Administrative Hearings

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ROBERT V. KRIEGEL, )

)

Petitioner, )

)

vs. ) OGC CASE NO. 13-0807

) DOA11 CASE NO. 13-0686

MAHOGANY MILL OWNERS ASSOCIATION,) INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

BRYAN BAARS, )

)

Petitioner, )

}

vs. ) OGC CASE NO. 13-0809

) DOAH CASE NO. 13-0687

MAHOGANY MILL OWNERS ASSOCIATION,) INC., and DEPARTMENT OF }

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

MIKE BEARD, )

)

Petitioner, )

}

vs. ) OGC CASE NO. 13-0843

) DOAH CASE NO. 13-0774

MAHOGANY MILL OWNERS ASSOCIATION,) INC., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

                                                                                )      

ED AND KAY RANKIN, )

)

Petitioner, )

)

vs. )

) MAHOGANY MILL OWNERS ASSOCIATION,) INC., AND DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

                                                                               I

OGCCASENO. DOAH CASE NO.

13-0834

13-0775

FINAL ORDER

An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH"), on June 11, 2013, submitted a Recommended Order ("RO") to the Department of Environmental Protection ("DEP" or "Department") in the above captioned consolidated proceedings. A copy of the RO is attached as Exhibit A. The RO shows that copies were sent to the Petitioners, Robert V. Kriegel, Bryan Baars, Mike Beard, and Ed and Kay Rankin ("Petitioners"), and to counsel for the Respondents, Mahogany Mill Homeowners Association, Inc. ("Mahogany Mill"), and the Department. The Petitioners, Robert V. Kriegel, Bryan Baars, and Ed Rankin, filed Exceptions to Recommended Order on June 24, 2013. The Department filed Exceptions to Recommended Order on June 26, 2013. On July 5, 2013, the Respondent Mahogany Mill and the Department separately filed responses to the Petitioners' Exceptions to Recommended Order. This matter is now on administrative review before the Secretary for final agency action.

BACKGROUND

Mahogany Mill Pond, located in Pensacola, Florida, is connected by a channel to Bayou Chico. The bayou provides passage to Pensacola Bay and the bay, in turn, is adjacent to the Gulf of Mexico. The Petitioners in these four consolidated cases all own deep draft sailboats which they moor in Mahogany Mill Pond. On October 11, 2012, Mahogany Mill applied to the Department to remove two existing finger piers and construct three new finger piers and two boat lifts (the "Project") at its property on Mahogany Mill Pond located at 1263 Mahogany Mill Road. The application (DEP File No. 17-0314481-001-EE) sought to have the Project declared exempt from permitting and to obtain an authorization to use sovereign submerged lands held in trust by the Board of Trustees of the Internal Improvement Trust Fund ("BOT"). On October 24, 2012, the Department issued a letter to Mahogany Mill verifying that the Project was exempt from regulatory review. The letter also consented to the construction and use of the Project on sovereign submerged lands.1

A Notice of Determination of Qualification for Exemption was published on February 14, 2013, in the Escambia Sun-Press. The Petitioners separately filed petitions for administrative hearing challenging the Department's Notice. The petitions were referred to DOAH and the ALJ conducted the final hearing on April 3, 2013, in Pensacola, Florida. The hearing transcript was filed with DOAH on April 18, 2013. The

1. The Secretary of the Department is delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which the Department has permitting responsibility. See Fla. Admin. Code R. 18-21.0051(2).

   parties timely filed proposed recommended orders and the ALJ subsequently issued the RO on June 11, 2013.

   SUMMARY OF THE RECOMMENDED ORDER

   
   

   In the RO the ALJ recommended that the Department issue a final order determining that Mahogany Mill's Project qualified for an exemption from the need to obtain an Environmental Resource Permit under section 403.813(1)(b), Florida Statutes ("F.S.''), and qualified for proprietary authorization under rule 18-21.005(1)(b), Florida Administrative Code ("F.A.C.''). (RO at page 29).

   The ALJ determined that Mahogany Mill demonstrated by a preponderance of the evidence that the Project "will not create a navigational hazard.''§ 403.813(1)(b), Fla. Stat. (2012); see a/so Fla. Admin. Code R. 62-346.051(5)(a). The ALJ concluded that qualification for the regulatory exemption under section 403.813(1)(b), F.S., entitled Mahogany Mill to an authorization to use state-owned submerged lands. See Fla. Admin. Code R. 18-21.005(1)(b) and 18-21.004(7)(9). (RO ffl[ 65-66). The ALJ

   found that the Project does not ex1end into the channel more than 24.0 feet offshore, the same ex1ension into the channel of the Preconstruction Mooring Pilings, which no

   vessel was shown to have ever collided with, in the many trips taken by the Petitioners in and out of the channel. (RO ,nr 47, 50, 51, 53, 55, 65, 67, 69). The ALJ concluded that the preponderance of the evidence clearly established that the Project was no more

   of a navigational hazard than the Preconstruction Mooring Pilings. Thus, the Project did not "create" a navigational hazard. (RO 1169).

   STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

   
   

   Section 120.57(1)(1), 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)(1), Fla. Stat. (2012); Charlotte Cty. v. IMC Phosphates Co., 18 So.3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007). 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. Pro/., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. Sch. Bd., 652 So.2d 894 (Fla. 2d DCA 1995).

   If there is competent substantial evidence to support an administrative law judge's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Construction Co. v. Dyer, 592 So.2d 276,280 (Fla. 1st DCA 1991); Conshor, Inc. v. Roberts, 498 So.2d 622 (Fla. 1st DCA 1986). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So.2d 485,487 (Fla. 2d DCA 1994).

   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., Peace River/Manasota Regional Water Supply Authority v. IMC

   Phosphates Co., 18 So.3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. V. State, Dep'tofHRS, 462 So.2d 83, 85 (Fla.1st DCA 1985); Fla. ChapterofSierra 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 Cty., 746 So.2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law," however, in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State,

   Bd. of Prof/ Eng'rs, 952 So.2d 1224 (Fla. 1st DCA 2007).

   
   

   RULINGS ON EXCEPTIONS

   
   

   In reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception." See§ 120.57(1)(k), Fla. Stat. (2012). The agency need not rule on an exception, however, that "does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.

   A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl.

   Coalition of Fla., Inc. v. Broward Cly, 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). 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, however, even when exceptions are not filed. See§

   120.57(1)(1), Fla. Stat. (2012); 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).

   
   

   PETITIONER'S EXCEPTIONS

   
   

   The Petitioners' exceptions are not numbered, do not clearly identify the disputed portion of the recommended order by page number or paragraph, do not identify the legal basis for the exception, and do not include appropriate and specific citations to the record. See§ 120.57(1)(k), Fla. Slat. (2012). Thus, the Department is not required to rule on the exceptions. Id. For the purpose of judicial review, however, the Department provides the following rulings on five separate paragraphs found under the section of the Petitioners' pleading titled "Exceptions to Recommended Order." See Petitioners' Exceptions at pages 2-3.

   First Paragraph (Exception No. 1)

   
   

   In the first exception, the Petttioners argue that they offered expert testimony concerning whether the Project will cause a navigational hazard for deep draft sailboats and that the Respondents did not offer any expert testimony. Contrary to the

   Petitioners' argument, the record contains expert testimony from the Respondents concerning navigation and hazards to navigation. (T. pp. 36-37, 46, 94, 106, 121, 125, 265, 267). The testimony of the Respondents' experts and also the testimony of the Petitioners' experts,' support the ALJ's ultimate determination that "the preponderance of the evidence clearly establishes that the Project is no more of a navigational hazard than the Preconstruction Mooring Pilings ... it does not 'create' a navigational hazard." (RO l] 69). Under the standard of review outlined above, the ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling, and this agency cannot reweigh the evidence presented at the DOAH final hearing.

   Therefore, this exception is denied.

   
   

   Second Paragraph (Exception No. 2)

   
   

   In the second exception, the Petitioners note that the ALJ found that the Project does not eA1end into the channel more than 24 feet. The Petitioners argue, however, that the ALJ did not recognize the significance of the width of the Project (36 feet) as further obstructing access into Mahogany Mill Pond. Contrary to the Petitioners' argument, the ALJ specified the Project's width in finding of fact paragraph 22 of the RO, and identifies the relationship between the Project and the channel location. (RO ,i 22). The Petitioners seek to have the Department reweigh the evidence and make supplemental factual findings. This exception is denied because the Department has no authority to reweigh the evidence or make supplemental findings of fact. See, e.g.,

   North Port, Fla. v. Consol. Minerals, 645 So.2d 485,487 (Fla. 2d DCA 1994).

   
   

2. The ALJ found that the testimony of the Petitioners' experts showed that no vessel has ever collided with the Preconstruction Mooring Pilings. (ROW 47, 50, 51, 53, 55, and 67).

Third and Fourth Paragraphs (Exception No. 3)

In the third exception, the Petitioners note that the ALJ found no vessel was

shown to have ever collided with the PreConstruction Mooring Pilings; and the Project is no more of a navigational hazard than the Preconstrudion Mooring Pilings. (RO ffll 67 and 69). The Petitioners argue that the ALJ ''fails to give weighe to post-project

conditions, including the presence of vessels in the slips extending further outwards. Contrary to the Petitioners' argument, the ALJ acknowledged such concerns in finding of fact paragraph 54 of the RO. Thus, when the ALJ reached the conclusions in

paragraphs 67 and 69 of the RO, it cannot be said that the RO reflects a failure to give weight to the concerns expressed by the Petitioners. (RO ,r 54). Again, the Petitioners seek to have the Department reweigh the evidence and make supplemental factual

findings. This exception is denied because the Department has no authority to reweigh the evidence or make supplemental findings of fact. See, e.g., North Port, Fla. v.

Consol. Minerals, 645 So.2d 485, 487 (Fla. 2d DCA 1994).

Fifth Paragraph (Exception No. 4)

In the fourth exception, the Petitioners suggest a factual finding that the Project and associated vessels will create a greater navigational hazard, and diminish the ability of vessels to seek safe haven in Mahogany Mill Pond during inclement weather.

Competent substantial record evidence supports the ALJ's findings and conclusions.

{T. pp. 46, 94, 106, 125, 165, 267). Thus, it is irrelevant that there may also be competent substantial evidence supporting contrary findings and conclusions. See, e.g., Arand Construction Co. v. Dyer, 592 So.2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc.

1. Roberts, 498 So.2d 622 (Fla. 1st DCA 1986). This exception is denied because the

   Department has no authority to reweigh the evidence or make supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So.2d 485, 487 (Fla. 2d DCA 1994).

   DEP'S EXCEPTIONS

   
   

   Exception Nos. 1 and 2

   The DEP takes exception to the conclusions of law contained in paragraphs 62 and 63 of the RO, where the ALJ concluded that Kay Rankin and Mike Beard's substantial interests could reasonably be affected by the Project. (RO ffll 62, 63). The

   DEP argues that these Petitioners did not appear at the administrative hearing and did not present any testimony or evidence to demonstrate their standing to challenge the agency's decision. See DEP's Exceptions at pages 2-4.

   The DEP points to the case law of Florida, which holds that a petitioner must demonstrate how she has standing to challenge an agency's decision. See, e.g., Agrico Chem. Co. v. Dep't of Envtl. Regulation, 406 So.2d 478,482 (Fla. 2d DCA 1981)(equating "substantial interests" with "standing"); Grande Dunes v. Watton County, 714 So.2d 473 (Fla. 1st DCA 1998)(equating "standing" with subject matter jurisdiction). The petitioner must offer proof of the elements of standing, and is sufficient that the petitioner demonstrate by such proof that her substantial interests "could reasonably be affected by ... [the] proposed activities." Palm Beach County Envtl. Coalition v. Dep't of Envtl. Protection, 14 So.3d 1076, 1078 (Fla. 4th DCA 2009). In addition, under Section 120.52(13), Florida Statutes, a party is both a person ''whose substantial interests will be affected by the proposed agency action, and who makes an appearance as a party." By failing to appear at the final hearing, or be otherwise represented by a person

   authorized to make an appearance (such as an attorney or a qualified representative),' these petitioners do not satisfy the requirements for standing to participate as a party. Saa§ 120.52(13), Fla. Stat. (2012).4

   Therefore, based on the foregoing reasons, the DEP's Exception Nos. 1 and 2

   
   

   are granted.

   
   

   CONCLUSION

   
   

   Having considered the applicable law in light of the rulings on the Exceptions above, and being otherwise duly advised, It is

   ORDERED that:

   
   

   1. The Recommended Order (Exhibit A), as modified by the above rulings, is adopted and incorporated herein by reference.

   2. The Respondent Mahogany Mill Owners Association, lnc.'s application in DEP File No. 17-0314481-001-EE, qualifies for an exemption from the need to obtain an Environmental Resource Permit under section 403.813(1)(b), Florida Statutes, and qualifies for proprietary authorization under rule 18-21.005(1)(b), Florida Administrative Code.

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 filing a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the

3 At the hearing, the ALJ denied the request of Carole Simpson to be designated as the qualified representative for Mike Beard. (T. Vol. I, p. 9).

4 In this case, this interpretation is as or more reasonable than that of the ALJ. See § 120.57(1)(1), Fla. Stat. (2012).

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

with the clerk of the Department.

DONE AND ORDERED this 'I day of September, 2013, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Secretary

iin:k?lDJR

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 ACKNOVJI...EDGED.

CERTIFICATE OF SERVICE

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

Robert Kriegel

1280 Mahogany Mill Rd, Apt. 14

Pensacola, FL 32507

Mike Beard

1280 Mahogany Mill Rd, Unit 15

Pensacola, FL 32507

Bryan Baars

1516 East Mallory Street Pensacola, FL 32503

Ed Rankin - Kay Rankin

1280 Mahogany Mill Rd, Unit 7

Pensacola, FL 32507

William J. Dunaway, Esquire

Clark, Partington, Hart, Larry, Bond & Stackhouse Post Office Box 1301O

Pensacola, FL 32591

by electronic filing to:

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

and by email to:

Brynna J. Ross, Esquire

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

Tallahassee, FL 32399-3000 brynna.ross@dep.state.fl.us

this IO y of September, 2013.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

F RA:'.:N::'.C:::IN:'.:E::'.::::'.:':::_ :::,....z=::::::--- -:::::'.:,--2 ::9"-

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

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

Docket for Case No: 13-000686

Orders for Case No: 13-000686