STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-444

)

FRANKLIN P. HATFIELD, JR., )

Lake County, Florida, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on May 11, 1978 in Tavares, Florida.

APPEARANCES

For Petitioner: Segundo J. Fernandez

Tallahassee, Florida

For Respondent: Michael P. Hatfield, Jr.

Umatilla,Florida

On or about November 17, 1977, the Florida Department of Environmental Regulation issued a Notice of Violation and Orders for Corrective Action, asserting that the Respondent, Franklin P. Hatfield, Jr., engaged in dredge and fill activities in submerged lands without obtaining the required permit from the Department. It is therein alleged that the Respondent owned land which bordered North Lake Holly in Lake County, Florida; and that he engaged in illegal dredge and fill activities in constructing a boat basin in waters of the State. It is alleged that the Respondent neither sought nor obtained a valid permit, and that the dredging would have an adverse impact upon the wildlife, and water quality of North Lake Holly. The Department directed that the Respondent pay the Department's expenses, and restore the area. The Respondent filed a Motion to Dismiss, and the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled by notice dated March 23, 1978. The Motion to Dismiss was denied on the record at the final hearing.

At the final hearing the Department called the following witnesses: John McManamy, a solid waste inspector employed by the Department; James Morgan, an environmental specialist employed by the Department; Robert Day, a pollution control specialist employed by the Department; and James Hulbert, a district biologist employed in the Department's Orlando office. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1-11 were received in evidence at the final hearing. Official notice was taken of the provisions of the rules of the

Department of Environmental Regulation, Chapter 17, Florida Administrative Code. The parties have submitted Proposed Recommended Orders.

FINDINGS OF FACT

1. The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977.

   
   

2. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation.

   
   

3. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline.

   
   

4. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself.

   
   

5. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result.

   
   

6. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a

   stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department.

   
   

7. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1977).

   
   

9. The Department has permitting jurisdiction over projects such as that undertaken by the Petitioner. Section 403.087, Florida Statutes (1977); Rule 17-4.28, Florida Administrative Code. The Respondent has asserted that application of permit requirements to projects such as his would constitute an illegal taking of property without just compensation. Even assuming arguendo,

   that the State's police power is not sufficient to justify regulation of private property rights so as to protect the quality of the State's waters, and the viability of the State's wildlife; the Respondent's contention would be without merit. The Respondent appears to be asserting that he in effect is denied access to the waters of North Lake Holly by the Department's action. The testimony in this case was clear and unrebutted that the Respondent can obtain access to North Lake Holly from his property by a project which will not result in the obliteration of the littoral zone.

   
   

10. The Respondent has contended that the Department's action in this case is arbitrary and capricious. This contention lacks any evidetiary support in the record. Indeed, were the Department to take no action against the Respondent in this case, any future action to prevent destruction of the shoreline of North Lake Holly against other property owners might be considered arbitrary and capricious.

    
    

11. No direct evidence was offered at the hearing to establish that the Respondent actually owns the subject property, or that he, either personally or through others, actually performed the dredging and filling. There is unrebutted testimony that the Respondent told agents of the Department that he owns the property and that he was responsible for the excavation. While this is hearsay, it is not inadmissible hearsay since it constitutes an admission against interest. The testimony is adequate to support a finding that the Respondent owned the subject property, and performed the illegal dredging and filling activity. The evidence also establishes that the Respondent continues to operate what amounts to a stationary facility which constitutes a source of pollution to the waters of North Lake Holly without the required permit. Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (1 DCA Fla. 1976).

    
    

12. The Respondent's illegal activities justify a final order requiring him to restore the area to its original condition, through means which will not result in further pollution of the waters of North Lake Holly. The Respondent's action also justifies an imposition of an assessment to compensate the Department for its expenses in investigating and maintaining this action against the Respondent.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED:

1. That the Department of Environmental Regulation enter a final order requiring the Respondent to restore the unauthorized dredge and fill site to its previous condition, or to a condition which will not operate in such a manner as to serve as a source of pollution to the waters of North Lake Holly.

   
   

2. That the Department of Environmental Regulation enter a final order directing the Respondent to pay the sum of $229.41 for expenses of the Department in investigating this matter and maintaining this action. That the Respondent be required to restore the site within ninety (90) days of the final order.

RECOMMENDED this 22nd day of June, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Michael H. Hartfield, Esquire Post Office Box 268 Umatilla, Florida 32784

Joseph W. Landers, Jr. Secretary

Department of Environmental Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-444

)

FRANKLIN P. HATFIELD, JR., )

)

Respondent. )

)

APPENDIX TO RECOMMENDED ORDER; RULINGS IN ACCORDANCE WITH FLORIDA STATUTES

SECTION 120.59(2)

The parties have submitted Post-Hearing Legal Memoranda including Proposed Findings of Fact and Conclusions of Law. Rulings upon proposed findings of fact and conclusions of law are set out herein in accordance with Section 120.59(2) Florida Statutes (1977).

Proposed Findings of Fact submitted by the Petitioner, Department of Environmental Regulation, numbered 1-10 have been substantially adopted in the Findings of Fact set out in the Recommended Order, and are hereby specifically adopted.

Proposed Conclusions of Law submitted by the Department numbered 1-15 are hereby adopted.

Proposed Findings of Fact submitted by the Respondent, and proposed Conclusions of Law submitted by the Respondent are hereby rejected.

ENTERED this 22nd day of June, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Michael H. Hartfield, Esquire

P.O. Box 268

Umatilla, Florida 32784

Joseph W. Landers, Jr. Secretary

Department of Environmental Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Docket for Case No: 78-000444

Orders for Case No: 78-000444