STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT F. AND VELDA L. ELBERT, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1666

)

FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION )

)

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 the above matter on November 9, 1979, in cocoa Beach, Florida.

APPEARANCES

The following appearances were entered:

For Petitioner: Robert F. Elbert and

Velda L. Elbert, pro-se Post Office Box 357

Cape Canaveral, Florida 32920

For Respondent: Alfred W. Clark

Tallahassee, Florida

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

On or about June 27, 1979, the Department of Environmental Regulation issued a Notice of Violation directed to Robert and Velda Elbert and to Marvin Mattix. The Department charged that the Elberts and Mattix constructed a seawall on submerged lands and waters of the Gulf of Mexico, and placed fill on the submerged lands without an appropriate valid permit from the Department.

The Department ordered the Elberts and Mattix to remove the seawall and to restore the area, and advised them of their rights to request a hearing. The Elberts filed a Petition for Formal Administrative Hearing. Mattix has not requested a hearing. On or about August 3, 1979, 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 in accordance with Section 120.57(1)(b)3, Florida Statutes. The final hearing was scheduled as set out above by notice dated August 17, 1979.

At the final hearing the parties were able to agree that factual allegations contained in the Notice of Violation and in the Petition for Formal Administrative Hearing were true, without the need for further testimony with

respect to those facts. In addition, Robert Elbert testified on his own behalf and Clifford Resico, a pollution control specialist employed by the Department testified on the Department's behalf. Hearing Officer's Exhibit 1, Petitioner's Exhibits 1 and 2, and DER Exhibits 1 through 6 were offered into evidence and were received.

FINDINGS OF FACT

1. The parties stipulated and agreed that the allegations contained in Paragraphs 1, 2, 3, 4, 5, 6, and 8 of the Notice of Violation issued by the Department could be accepted as true without the need for any further proof. The allegations are as follows:

   
   

   1. The Department of Environmental Regulation is the administrative agency of the State of Florida charged with the duty to protect Florida's air and water resources and to administer and enforce the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and the rules promulgated thereunder, Chapter 17, Florida Administrative Code.

      
      

   2. Respondents, Robert and Velda Elbert, own a parcel of land located at 123 Gulfview Boulevard, Hudson, Florida, adjacent to waters of the Gulf of Mexico at Yellow Point, Pasco County. Respondent, Marvin Mattix, is a resident of Pasco County whose occupation includes the construction of seawalls.

      
      

   3. The Department has previously informed Respondents Elbert that Respondents had, on the aforesaid property, violated the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and applicable rules, Chapter 17, Florida Administrative Code. The Department informed Respondents of these violations by sending Respondents official correspondence on April 3, 1979, attached as Exhibit A.

      
      

   4. On or before January 30, 1979, Respondent Elbert and Mattix constructed or caused to be constructed a seawall on submerged lands and in waters on the Gulf of Mexico adjacent to Respondents Elberts' aforesaid property, and placed fill on submerged land and in waters of the Gulf of Mexico in connection with construction of the seawall.

      
      

   5. The aforesaid seawall and associated fill was placed in waters of the State on a submerged lands in, adjacent to the continuous with the waters and shoreline of the Gulf of Mexico in an area dominated by plant species listed in Section 17-4.02(17), Florida Administrative Code, including red mangrove (rhizophora mangle) and black mangrove (avicennia germinous).

      
      

   6. Respondents' seawall construction and associated filling activity was undertaken without an appropriate and valid permit from the Department as required by Section 17-4.03 and 17-4.28, Florida Administrative Code, and Section 403.087, Florida Statutes.

      
      

      8. The Department incurred costs and expenses while investigating this matter as outlined in Exhibit B.

      
      

      As to Paragraph 4, the parties stipulated that fill was not placed in behind the seawall because after the Elberts were advised by the Department that the fill would be illegal, they ceased further activity.

2. The parties stipulated and agreed that Paragraphs (a), (B), (C), (D), and (E) from the Petition for Formal Administrative Hearing could be accepted as true without the need for any further proof. These facts are as follows:

   
   

   1. NAME AND ADDRESS OF AFFECTED AGENCY - Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. (Agency's file number unknown).

      
      

   2. NAMES AND ADDRESSES OF PETITIONERS - Robert F. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920 and Velda L. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920.

      
      

   3. DISPUTED ISSUES OF MATERIAL FACT - There are no disputes with the material facts presented.

      
      

   4. CONCISE STATEMENT OF THE ULTIMATE FACTS, THE ACTIONS TAKEN BY THE PETITIONERS AND THE REASONS FOR ENTITLING THE PETITIONER TO RELIEF - Petitioners allege (sic) that a contract was negotiated with a local sea wall builder (Mr. Mattix) who was recommended by the bank financing the sea wall (Community Bank of Pasco). Mrs Mattix informed Mrs. Elbert that a permit was not required and our seawall was one of the last two he could build without his obtaining a permit. Both petitioners (R.F. Elbert and V. L. Elbert) met with Mr. Mattix at the building site and per Mr. Mattix's suggestion, the sea wall location was selected so that the petitioner's sea wall would be 'in line' (lined up) with the other sea walls already built on the street. This appeared to be the logical location and the sea wall was built accordingly. After the sea wall was completed and paid, the petitioners were notified, both verbally and in writing, that the sea wall was built in violation of existing environmental regulations. To that point, the petitioners were unaware of violating any rules or regulations. Had the petitioners been aware of any regulations, they definitely would have complied and assured the builder also comply.

      
      

   5. INFORMAL ACTION - No informal actions were taken by the petitioner except to talk to DER in Tampa (Mr. Resico). Mr. Resico informed the petitioners that the agency and Mr. Mattix (sea wall builder) held meetings and that Mr. Mattix informed the agency that he had misinterpreted the agency's regulations. At no time did Mr. Mattix inform the petitioner about his actions with your agency.

   
   

3. The Elberts own a parcel of land in Pasco County adjacent to the Gulf of Mexico. They are planning to utilized the property as a retirement residence. The desired to build a seawall so that they could park a boat adjacent to their property. The bank that financed the seawall recommended that they retain Marvin Mattix to construct the seawall. The Elberts contracted with Mattix to construct it. The location for the seawall was chosen because it lined up with other seawalls near to the Elberts' property. The Elberts would have preferred the seawall be built further into the Gulf, but they were advised by Mattix that it should line up with other seawalls. Some of the other seawalls were apparently constructed without any permit from the Department of Environmental Regulation, and the Department has taken some steps to investigate the alleged violations, although no formal notices have been issued. The Elberts discussed with Mattix whether any permits from government agencies would be required, and they were advised that they would not need any permits. The builder advised the Elberts that he had approval from the Federal corps of Engineers, but the Elberts were later advised by the Corps that they had no knowledge of the project. The Elberts were not aware that they were violating any standards when they constructed the seawall. The seawall was in line with

   other seawalls on the street, and it will be expensive and difficult to remove it. The Elberts have been totally cooperative in their dealings with the Department of Environmental regulation, and it is apparent that they would not have taken any steps to construct the seawall without appropriate permits except for the advice of the builder.

   
   

4. The Notice of violation issued by the Department was directed not only to the Elberts, but also to the builder, Marvin Mattix. The notice was forwarded to Mattix with a return receipt, and Mattix did not sign for the notice. Mattix did not request a hearing with respect to the allegations of the Notice of Violation.

   
   

5. The seawall is located approximately eight feet seaward of the mean high water line adjacent to the Elberts' property. There are no seawalls directly adjacent to the Elberts' property but there is a seawall two lots down which also apparently was constructed without a permit. The Elberts' nex-door neighbor applied to construct a seawall at the same location as the Elberts' seawall but was told that a wall could not be placed that far into the water. The Elberts' property does not actually face directly into the Gulf of Mexico. It is on an estuary, and is approximately two lots down from the open waters of the Gulf. It is not a residential canal.

   
   

6. Prior to the hearing, the Department incurred $182.60 in costs and expenses while investigating this matter.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. The construction of the seawall took place in waters of the State as defined in section 403.031(3), Florida Statutes, and the submerged lands of such waters as defined in Sections 17-4.02(1&) and (19), Florida Administrative Code. The seawall was constructed in violation of Sections 17-4.03 and 17-4.28(2), Florida Administrative Code and Sections 403.087(1) and 403.161(1)(b) Florida Statutes, which require an appropriate and currently valid permit issued by the Department. The seawall as constructed with do harm to aquatic life in the waters of the State.

   
   

9. The Elberts are responsible for the legal consequences of construction of the seawall. It would be impossible, however, not to consider the equities of their situation. They were unfortunately duped by the builder, Mr. Mattix, into believing that no permit was required. It is not unreasonable for lay citizens to rely upon a builder's representations as to permit requirements. Since other property owners in the area will not be permitted to construct seawalls into waters of the State, it is not appropriate that the Elbert benefit from the illegal construction in this matter. It is also not appropriate that they bear the brunt of enforcement action. The Notice of Violation was served upon Marvin Mattix, and he was invited to petition for a hearing. The Notice of Violation provides in Paragraph 7:

Failure to file a written request for an administrative hearing within the requisite time after service of this notice shall constitute a waiver of the right to an administrative hearing. A waiver will cause

the Department, pursuant to Section 403.121, Florida Statutes, and Section 17-1.58, Florida Administrative Code, to adopt in a final order the matters alleged in the Notice of Violation and orders for Corrective Action. The adoption will be done before filing a Petition for Enforcement in a court of competent jurisdiction. Notice of the adoption of the final orders will be provided through service by certified mail of final orders upon the Respondents.

RECOMMENDATION

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

RECOMMENDED:

1. That a final order be entered requiring that Robert and Velda Elbert and Marvin Mattix take the following corrective action:

   
   

   1. Within thirty (30) days of the date of the final order, they should remove the seawall and associated fill, and restore the area to its original condition;

      
      

   2. They should make payment to the Department in the amount of

      $182.60 to compensate the Department for expenses in tracing, controlling nd abating the violation.

      
      

2. That enforcement action be taken first against the builder, Marvin Mattix, so that the cost of removing the seawall and restoring the area is borne by the party who caused the violation; and that only upon the failure of enforcement against Marvin Mattix should final enforcement action be taken against the Elberts.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of December, 1979.

C. STEVEN PFEIFFER Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1979.

COPIES FURNISHED:

Robert F. and Velda L. Elbert Post Office Box 357

Cape Canaveral, Florida 32920

Alfred W. Clark, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-001666

Orders for Case No: 79-001666