Petitioner: BEN WITHERS AND BEN WITHERS, INC.
Respondent: DEPARTMENT OF ENVIRONMENTAL PROTECTION
Judges: CHARLES A. STAMPELOS
Agency: Department of Environmental Protection
Locations: Tallahassee, Florida
Filed: Jan. 03, 2002
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, January 9, 2003.
Latest Update: Dec. 24, 2024
sada
bald ae
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IN RE:
On the
Systems, cons!
grading, cleari
seaward of the
benefit of a pe
recommendatic
Findings of Fa
lL OC
for the propos
control line or
Environmental
Florida (Prope!
pennit was iss.
the Notice to
construction ac
the project site
2. €
project, submi
Department is
accepted Mr. \
1.5.
3 OT
Department he
permit conditio
QO-117
L ‘) aezevesose
STATE OF FLORIDA ADMIMISTRATIV
JEPARTMENT OF ENVIRONMENTAL PROTECTIONE A?2)NGS
Assessment of an administrative fine to Ben
Withers, Ben Withers, Inc., in conjunction with an
approval of an after-the-fact coastal construction
control line permit to Leonard Pepper in Franklin
County: Files FR-563 (Amend) Ml ATF and OGC
File # 01-1863.
FINAL ORDER
xt date shown below, the Director of the Office of Beaches and Coastal
ved the files regarding Ben Withers, Ben Withers, Inc., for unauthorized
and excavation for the purposes of constructing a roadway and driveway
astal construction control line on property owned by Leonard Pepper without
it from the Department of Environmental Protection. After considering the
of staff, the Department of Environmental Protection adopts the following
nd Conclusions of Law. ;
~Findings of Fact-
Detober 20, 1999, the Departnient issued permit FR-563 to Leonard Pepper,
construction of a single-family dwelling seaward of the coastal construction
‘operty located approximately 300 feet to 485 feet east of Department of
otection reference monument R-150, on Dog Island, in Franklin County,
. On October 13, 2000, the Department issued permit FR-563 (Amend). The
as a Notice to Proceed Withheld. Among the items requested for issuance of
oceed, special permit condition number 1.5 required the submittal of a
's plan showing the route and timing for bringing equipment and materials to
order to minimize impacts to the beach and dune system.
March 15, 2001, Ben Withers, Ben Withers, Inc., the contractor for the
{ a construction access plan to the Department. On April 11, 2001, the
d the Notice to Proceed for permit FR-563 (Amend). The Department
hers’ construction access plan as satisfying special permit condition number
to concerns and confusion regarding the access plan, on April 24, 2001, the
a meeting in Apalachicola, Florida, to discuss the Department’s permit, the
and the accepted construction access plan. Department staff met with Mr.
EXHIBIT
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fs
ed
ad
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ibe
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FILE NAME: |
FILE NUMBE
Page 2
Withers and |
Commission, 1
and Florida Po
4 .
accepted the ¢
construction a
‘specifically aut
5. C¢
unauthorized g
driveway seaw
the permit and
6. £
Inc., that the
Statutes, the p
cease such aci
Violation/Ceas
facsimile mess
7 6¢
Systems. Mr.
Department w
Department st
used in the coi
ete., along th
driveway seaw
& |
responded to
Yonclas stated
plans and conc
the Departmer
the house site.
; 9 |
The letter advi
L sez2pescgs
yper/Ben Withers, Inc.
: FR-563 (Amend) M1 ATF
attorney, the U. S. Fish & Wildlife Service, Florida Fish & Wildlife
Nature Conservaticy, Franklin County, the DEP Tallahassee District Office,
¢ Corporation. In addition, several Dog Island residents attended.
artment staff advised the attendees of the meeting that the Department had
1. Staff also advised that neither the permit or staff's acceptance of the
ss plan authorized any additional excavation other than that which was
‘ized within the footprint of the proposed dwelling.
May 7, 2001, a staff inspection of the subject Property revealed the
ing, clearing, and excavation for the purposes of constructing a roadway and
| of the coastal construction control line, which was not in accordance with
groved plans.
etter dated May 8, 2001, the Department notified Ben Withers, Ben Withers,
tivities on the Property were in violation of Section 161.053(2), Florida
2it and the approved plans, and ordered Ben Withers, Ben Withers, Inc., to
ties pending compliance with the law. The Department’s Notice of Permit
and Desist Order was received by Ben Withers, Ben Withers, Inc., via
:on May 9, 2001.
May 9, 2001, Ben Withers visited the Office of Beaches and . Coastal
‘ithers denied violating the permit. He stated that he had provided the
an access plan and that he had followed the route shown on the plan.
advised Mr. Withers that while the Department had accepted the path to be
‘uction access plan, the Department in no way approved excavation, grading,
ecess route and that the permit had not approved the construction of the
| of the control line. ; Lo
fetter dated May 14, 2001, Nicholas Yonclas, attorney for Ben Withers,
: Department's Notice of Permit Violation/Cease and Desist Order. Mr.
at all of the work was in accordance with the project description, approved
ons of the permit. He stated that the construction access plan was approved by
ind showed the 30-foot dccess easement and 12-foot wide driveway leading to
fetter dated June 6, 2001, the Department responded to Mr. Yonclas” letter.
| that neither the permit nor the construction access plan authorized or
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“ogee
a
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FILE NAME:
FILE NUMBI
Page 3
allowed for e
letter rerninde
Department hi
gain access t
excavation, ot
10, (
from Jeffrey \
tl.
from Nichola
Department is
an Amended 1
12. |
application to
Department o1
13.03
the Cease and
May 8, 2000.
(Amend), cou
14. |
administrative
letter dated S:
hearing on be.
15.
FR-563 (Ame
1. :
excavation foi
)
“Ll Se.evssoge NOLLONGLSNOD SUSHLIA N3B-Wory = WdgH?2{ 1002-91-98
pper/Withers
i: FR-563 (Amend) Mi ATF
vation, clearing and/or grading activities seaward of the contro! line. The
Ar. Yonclas that during the meeting in Apalachicola in April, 2001, that the
advised Mr. Withers that the access plan had provided an access, or means to
he Property. The permit and the plan did not authorize any additional
than that specifically authorized by the permit.
June 22, 2001, the Department received a request for administrative hearing
Pepper, on behalf of the owner of the subject Property, Leonard Pepper.
June 28, 2001, the Department received a request for administrative hearing
onclas, on behalf of Ben Withers, Ben Withers, Inc. On July 23, 2001, the
dan Order Dismissing the Petition with Leave to Amend. On July 27, 2001,
tion was received from Mr. Yonclas. :
June 29, 2001, Ben Withers, Ben Withers, Inc., submitted an after-the-fact
xdify permit FR-563 (Amend). The application was deemed complete by the
ugust 23, 2001.
letter dated September 19, 2001, the Department advised Mr. Withers that
asist portion of the Notice of Permit Violation/Cease and Desist Order dated
ad been lifted and that the authorized work in the original permit, FR-563
sommence. .
letter dated September 24, 2001, Nicholas Yonclas withdrew the petition for
saring on behalf of Ben Withers, Ben Withers, Inc., without prejudice. By
amber 26, 2001, Jeffrey W. Pepper withdrew the petition for administrative
fof Leonard Pepper, without prejudice.
October 31, 2001, the Department administratively approved permit number
‘Mi ATF.
-Conelusions of Law-
1 Withers, Ben Withers, Inc., initiated the unauthorized grading. clearing and
e purposes of constructing a roadway and driveway seaward of the coastal
ger or
vw
oe
led — 010/800'd
FILE NAME:
FILE NUMBE
Page 4
construction cc
the project des:
2. #-P
refusing to co
Florida Statute
fine for each o
Department. F
offense.
3. F
willfully cond
fined up to $:
potential for 2
control line an
who has const
known that an
seaward of the
by Department
in the permit. 1
the control line
4, t
the Secretary ¢
21, 2001.
Based u
fine in the am
Withers, Inc.,
Administrative
within twenty+
Administrative
Attention: Jim
Station 300. ]
should be mac
should include
number 01-181
Ll , —Sb22regogs NOVLONULSN = MEHLIM N3G-WO4y = Wg s2 | 1002-0 1~28g
2pet/Withers
: FR-563 (Amend) M1 ATF
‘ol line without benefit of a Department permit and not in accordance with
xtion, approved plans and conditions of Department permit FR-563 (Amend).
uant to Section 161.054, Florida Stantes, any person or agent of any person
ly with or willfully violating any of the provisions of Section 161.053,
or any rule or order prescribed by the Department thereunder, shall incur a
nse in any amount up to $10,000 to be fixed, imposed and collected by the
aday during any portion of which such violation occurs constitutes a separate
uant to Rule 62B-54.002(1), Florida Administrative Code, violations that are
‘d and that do not have a significant potential for adverse impact may be
30. Assessments are based upon precedent, the nature of the violation,
srse impact, prior knowledge of the existence of the coastal construction
he intent of the violator. Ben Withers, Ben Withers, Inc., as a contractor
ted numerous projects seaward of the control line, knew or should have
jitional Department permit was required for the activity that was performed
astal construction control line. Ben Withers, Ben Withers, Inc., was advised
Sf that no additional excavation was authorized beyond what was allowed for
addition, the permit did not authorize the placement of a driveway seaward of
action is taken pursuant to Administrative Directive DEP 100, approved by
he Department on November 30, 2000, and DEP Directive 137 dated June
1 the foregoing Findings of Fact and Conclusions of Law, an administrative
at of five hundred ($500) dollars is hereby assessed to Ben Withers, Ben
provided for in Section 161.054, Florida Statutes, and Rule 62B-54, Florida
nde. Payment to the Department of Environmental Protection is required
(21) days of your receipt of this Final Order. Your check should be sent to:
nforcement Section, Ecosystems Management and Restoration Trust Fund,
rtinello, 3900 Commonwealth Boulevard, Tallahassee, Florida, 32399, Mail
order to ensure that payment is j properly credited to you, your check
aayable to the Ecosystem Management and Restoration Trust Fund and
ference to violation file number FR-563 (Amend) Mi ATF and OGC file
RRR “REI ee me
Zed 010/800'd i
FILE NAME: |
FILE NUMBE
Page 5
Pursuar
shall create a
Department as
All per
Pursuant to Sex
‘hearing. The P
at the Departr
Tallahassee, F
copy of the Px
Coastal Systen
twenty-one (2]
hearing pursua
The Pe
(a) The name,
file number ar
of how and w:
each petitione!
material facts
warrant revers
petitioner
contends requi
sought by peti
respect to the }
If a Pe
action. » Accox
by it in this Nr
Department w.
to the proceed
(received) wit
Counsel at the
frame constitu
120.569 and |
subsequent int
pursuant to Ru
\ y
}
L gezpeeose
/Withers
: FR-563 (Amend) M1) ATF
9 Section 161.054, Florida Statutes, failure to pay the fine imposed herein
1 upon the real and personal property of the violator, enforceable by the
statutory liens under Chapter 85, Florida States.
s whose substantial interests are affected by this Final Order have a right,
tis 120.569 and 120.57, Florida Statutes, to petition for an administrative
jon must contain the information set forth below and must be filed (received)
it's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35,
da 32399-3000, within twenty-one (21) days of receipt of this notice. A
on must also be mailed at the time of filing to the Office of Beaches and
aamed above at the address indicated. Failure to file a Petition within the
lays constitutes a waiver of any right such person has to an administrative
© Sections 120.569 and 120.57, Florida Statutes.
an shall contain the following information:
dress, and telephone number of each petitioner; the Department's violation
he county in which the subject matter or activity is located; (b) A statement
_each petitioner received notice of the Final Order; (c) A statement of how
substantial interests are affected by the Final Order; (d) A statement of the
wuted by petitioner, if any; (e) A statement of facts which petitioner contends
w modification of the Final Order: (f) A statement of which rules or, statutes
reversal or modification of the Final Order; (g) A statement of the relief
ier, stating precisely the action petitioner wants the Department to take with
al Order.
wn is filed, the administrative hearing process is designed to formulate agency
gly, the Department's final action may be different from the position taken
e. Persons whose substantial interests will be affected by any decision of the
regard to the subject Final Order have the right to petition to become a party
. The Petition must conform to the requirements specified above and be filed
twenty-one (21) days of receipt of this notice in the Office of General
ove address of the Department. Failure to petition within the allowed time
a waiver of any tight such person has to request a hearing under Sections
.57, Florida Statutes, and to participate as a party to this proceeding. Any
ention will only be at the approval of the presiding officer upon motion filed
28-106.205, Florida Administrative Code.
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weer or npn
ner
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ib
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FILE NAME: Per
FILE NUMBERS:
Page 6
A person:
petition for an adi
may choose to p
Statutes, before tl
the right to a hear
mediation are set
Mediation
agree that mediat
agreement with :
and any person '
how the substan:
agreement must
3900 Commonw
same deadline as
The agre!
(a) The
me
(b) The 1
or a pro
(c) The <
(d) The i
introduc
(e) The «
the first
(f) Thet
recom
4g) Eith
be affe:
stateme
and inc
(h) The
As prov
mediate will to
Statutes, for re
parties, the m
agreement.
Al ease
gererseoss
{Withers
2-563 (Amend) Mi ATF
yse substantial interests are affected by the Final Order may file a timely
istrative hearing under Sections 120.569 and 120.57, Florida Statutes, or
ue mediation as an alternative remedy under Section 120.573, Florida
leadline for filing a Petition. Choosing mediation will not adversely affect
if mediation does not result in a settlement. The procedures for pursuing
th beiow.
ay only take place if the Department and all the parties to the proceeding
is appropriate. A person may pursue mediation by reaching a mediation
yarties to the proceeding (which include the Respondent, the Department,
) has filed a timely and sufficient petition for a hearing) and by showing
interests of each mediating party are affected by the Final Order. The
filed in (received by) the Office of General Counsel of the Department at
th Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, by the
t forth above for the filing of a petition.
snt to mediate must include the following:
es, addresses, and telephone numbers of any persons who may
tion;
we, address, and telephone number of the mediator selected by the patties,
on for selecting a mediator within a specified time;
ed allocation of the costs and fees associated with the mediation;
zement of the parties on the confidentiality of discussions and documents
during mediation; “ ,
, time, and place of the first mediation session, or 2 deadline for holding
sion, if no mediator has yet been chosen;
1¢ of each party's representative who shall have authority to se
d settlement;
an explanation of how the substantial interests.of each mediating party will
1 by the action or proposed action addressed in this notice of intent or a
slearly identifying the petition for hearing that each party has already filed,
rating it by reference; and
matures of all parties or their authorized representatives.
attend the
ttle or
din Section 120.573, Florida Statutes, the timely agreement of all parties to
he time limitations imposed by Sections 120.569 and 120.57, Florida
sting and holding an administrative hearing. Unless otherwise agreed by the
ation must be concluded within sixty (60) days of the execution of the
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FILE NAME: |
FILE NUMBE:
Page 7
If medi:
enter a final o
interests will b«
petition for a I
above, and mu
notice. If med:
all parties in v
120.57, Florid:
specify the dez
remedies under
Any par
pursuant to Se
Rules of Appell
Department of J
Boulevard, MS.
of Appeal withi
The Notice file
Section 35.22(3
Done an
Tallahassee, Fic
2
FILING AND 4
FILED, on this
$120.52, Florid.
designated Depa
of.which is here
Department Clei
" stleveeogs
-—WOLLIMAUSWO Vai sea
| HSNO “VHA W3geu0y
per/Withers
FR-563 (Amend) M1 ATF
n results in settlement of the administrative dispute, the Department must
r incorporating the agreement of the parties. Persons whose substantial
‘fected by such a modified final decision of the Department have a right to
ting only in accordance with the requirements for such petitions set forth
herefore file their petitions within twenty-one (21) days of teceipt of this
an terminates without settlement of the dispute, the Department shall notify
ing that the administrative hearing processes under Sections 120.569 and
‘atutes, remain available for disposition of the dispute, and the notice will
hes that then will apply for challenging the agency action and electing
se two Statutes.
‘o this Final Order has the right to seek judicial review of this final order,
n 120.68, Florida Statutes, and Rules 9.030(6)(1)(c) and 9.110, Florida
Procedure. To initiate an appeal, a Notice of Appeal must be filed with the |
‘ironmental Protection, Office of General Counsel, 3900 Commonwealth
» Tallahassee, Florida 32399-3000, and with the appropriate District Court
hirty (30) days of the date this final order is filed with the Agency Clerk.
“ith the District Court noust be accompanied by the filing fee specified in
forida Statutes.
aal
rdered this 30" gay of Ajucmbenr 2001, in
a. a
State of Florida
Department of Environmental Protection
Md
Alfred. Devereaux, Director
Office of Beaches and Coastal Systems
SNOWLEDGEMENT
©, pursuant to
tatutes, with the
tent Clerk, receipt
acknowledged.
w) Ufsofel Aebedhe A cash
Date Assistant Generd! Counsel ;
‘ Approved as to Form and Legality
Ud8h:21 1002-91-08
oe meet
roger or
RT ET er geome reer
Docket for Case No: 02-000117
Issue Date |
Proceedings |
Jan. 09, 2003 |
Recommended Order of Dismissal issued. CASE CLOSED.
|
Dec. 16, 2002 |
Respondent`s Response to Petitioner`s Application and Motion for Award of Attorney`s Fees and Costs (filed via facsimile).
|
Nov. 14, 2002 |
Motion for Award of Attorney`s Fees and Costs Pursuant to Section 57.111, Florida Statutes (DOAH Case No. 02-4468F established) filed by Petitioner.
|
Nov. 12, 2002 |
Motion for Award of Attorney`s Fees and Costs Under Section 120.595, F.S. (filed by Petitioner via facsimile).
|
Oct. 21, 2002 |
Order Closing File issued. CASE CLOSED.
|
Oct. 21, 2002 |
Unopposed Motion to Relinquish Jurisdiction to the Department (filed by Respondent via facsimile).
|
Oct. 16, 2002 |
Unnopposed Motion to Relinquish Jurisdiction to the Department (filed by Respondent via facsimile).
|
Oct. 09, 2002 |
CASE STATUS: Hearing Held; see case file for applicable time frames. |
Oct. 09, 2002 |
Respondent`s Motion in Limine to Prohibit Introduction of Testimony and Exhibits (filed via facsimile).
|
Oct. 09, 2002 |
Letter to N. Yonclas from T. Vielhauer enclosing the Department`s rescission of the final order issued November 30, 2001 (filed via facsimile).
|
Oct. 07, 2002 |
Amendment to Prehearing Stipulation of the Parties (filed by Respondent via facsimile).
|
Oct. 01, 2002 |
(Joint) Prehearing Stipulation of the Parties (filed via facsimile).
|
Sep. 24, 2002 |
Notice of Taking Deposition Duces Tecum, K. Greenwood (filed via facsimile).
|
Sep. 23, 2002 |
Notice of Appearance (filed by Respondent).
|
Sep. 18, 2002 |
Amended Notice of Taking Deposition Duces Tecum, B. Withers filed.
|
Sep. 05, 2002 |
Notice of Taking Deposition Duces Tecum, B. Withers filed.
|
Aug. 28, 2002 |
Notice of Appearance (filed by Respondent).
|
Jul. 08, 2002 |
Notice of Hearing issued (hearing set for October 9 and 10, 2002; 9:00 a.m.; Tallahassee, FL).
|
Jul. 02, 2002 |
Case Status Report (filed by Respondent via facsimile).
|
May 13, 2002 |
Order Granting Continuance issued (parties to advise status by July 2, 2002).
|
May 10, 2002 |
Department of Enviromental Protection`s Motion for Continuance filed.
|
Apr. 23, 2002 |
Notice of Taking Deposition, P. Sanders, T. McNeal (filed via facsimile).
|
Apr. 15, 2002 |
Petitioner`s Response to Respondent`s Request for Production of Documents (filed via facsimile).
|
Apr. 12, 2002 |
Notice of Petitioner`s Response to Respondent`s First Interrogatories to Petitioners (filed via facsimile).
|
Apr. 10, 2002 |
Notice of Respondent`s Response to Petitioner`s First Set of Interrogatories to Respondent filed.
|
Mar. 12, 2002 |
Department of Environmental Protection`s Request for Production of Documents filed.
|
Mar. 12, 2002 |
Notice and Certificate of Service of Interrogatories filed by Respondent.
|
Mar. 08, 2002 |
Petitioners` First Set of Interrogatories to Respondent (filed via facsimile).
|
Mar. 08, 2002 |
Petitioners` Request for Production of Documents (filed via facsimile).
|
Mar. 07, 2002 |
Order of Pre-hearing Instructions issued.
|
Mar. 07, 2002 |
Order Granting Continuance and Re-scheduling Hearing issued (hearing set for May 21 and 22, 2002; 9:00 a.m.; Tallahassee, FL).
|
Mar. 07, 2002 |
Order of Consolidation issued. (consolidated cases are: 02-000117, 02-000621)
|
Mar. 01, 2002 |
Motion to Consolidate Cases (nos. 02-117, 02-621) (filed by Petitioners via facsimile).
|
Jan. 18, 2002 |
Order of Pre-hearing Instructions issued.
|
Jan. 18, 2002 |
Notice of Hearing issued (hearing set for March 26, 2002; 9:00 a.m.; Tallahassee, FL).
|
Jan. 17, 2002 |
Joint Response to Initial Order filed.
|
Jan. 11, 2002 |
Initial Order issued.
|
Jan. 03, 2002 |
Final Order filed.
|
Jan. 03, 2002 |
Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.
|
Jan. 03, 2002 |
Petition for Administrative Hearing filed.
|