STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 82-1640
)
FLORIDA EAST COAST )
PROPERTIES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 31 and February 1 and 2, 1983, in Miami, Florida.
APPEARANCES
For Petitioner: Paul R. Ezatoff, Jr., Esquire
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent: Clifford A. Shulman, Esquire and
Thomas K. Equels, Esquire Brickell Concours
1401 Brickell Avenue, PH-1 Miami, Florida 33131
Petitioner, State of Florida, Department of Environmental Regulation ("DER"), has issued a six-count Notice of Violation dated April 20, 1982, against Respondent, Florida East Coast Properties, Inc. ("Respondent" or "FEC"), alleging violations of Chapters 258 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, by construction of improvements in violation of outstanding DER permits and at variance with state law. Specifically at issue in these proceedings is the legality of Respondent's construction of a fueling station building on a platform at the end of the central dock in its Plaza Venetia Marina, located in the Biscayne Bay Aquatic Preserve. Respondent claims to have constructed the building under the general authority of its permits for the marina, either. as originally issued or as modified by plans and other documents subsequently submitted to various state agencies. DER claims that the original permit for the central dock did not authorize the erection of any building on the fueling platform within the Preserve, and that Respondent never obtained any other permit or authorization for the construction.
This cause was consolidated for final hearing with the cause styled Department of Natural Resources and Trustees of the Internal Improvement Trust-
Fund v. Florida East Coast Properties, Inc., D.O.A.H. Case No. 82-997. In that case, the Department of Natural Resources seeks to revoke Respondent's lease of the submerged sovereignty lands underlying the central dock on the similar grounds that the original lease did not authorize the construction of any building within the Preserve, except the dock and the fueling platform, and that Respondent obtained no new lease or other authorization for the construction.
Consolidation of these two causes was solely for purposes of final hearing, however, and separate recommended orders are being submitted to the agency heads in each cause.
At the final hearing in this cause, DER called Laurence O'Donnell, Richard Reis, and Richard Lotspeich as its witnesses. DER offered DER Exhibits 1 through 18, which were received into evidence. Respondent called Tibor Hollo, Spencer Meredith, J. Frederic Blitstein, Tarek Khalil, and Daniel Meisen as its witnesses. Respondent offered FEC Exhibits 1 through 40, 51 through 54, and 58 through 70, which were received into evidence. Additionally, Hearing Officer's Exhibits 1 through 8 and Joint Exhibits 1 through 3 were received into evidence. The following members of the public were allowed to testify at the final hearing: Marilyn Reed, Minette Benson, Janet Cooper, Nancy Brown, and George Reed.
At the conclusion of the final hearing, counsel for DER and DNR stipulated that all exhibits from the consolidated hearing would be forwarded to DER with this Recommended Order. Accordingly, all hearing exhibits accompany this order, and the ultimate distribution of the exhibits will be determined by DER and DNR.
Counsel for all parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
On January 28, 1983, DER and Respondent entered into a Stipulation for Dismissal wherein Respondent agreed to perform certain mitigative work in return for DER's dismissal with prejudice of Counts I, II, III, and V of the Notice of Violation. DER announced this stipulation and dismissal at the outset of the formal hearing on January 31, 1983. Accordingly, only Counts IV and VI remain for determination in this proceeding.
FINDINGS OF FACT
Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, immediately north of the Venetian Causeway. The marina is constructed on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund.
On May 4, 1976, DER issued Permit No. 13-30-0364-6E to Respondent. That permit authorized the construction of two concrete marina docks, one "T" shaped and 255 feet long, and the other "J" shaped and 500 feet long. The project site is north of the Venetian Causeway on the western edge of Biscayne Bay, Section 31, Township 53 North, Range 42 East, Dade County, Florida.
On August 18, 1977, DER issued Permit No. 13-30-3984 to Respondent. That permit authorized the construction of a 700 foot long "J" shaped pier with
24 finger piers and associated mooring pilings, and the construction of a 280 foot long "T" shaped pier. This permit authorized construction to be undertaken
directly north of the docks authorized by Permit No. 13-30-0364-6E described above.
On August 18, 1977, Respondent applied to DER's West Palm Beach office for a permit to construct the center pier of the Plaza Venetia Marina. On October 27, 1977, DER issued Permit No. 13-30-0740-6E to Respondent. This permit, which is the only one of the three permits at issue herein, authorized construction of a boat tie-up and fueling facility for a public marina. This facility represented a final phase of a master plan which includes the two other marinas with tie-up accommodations authorized by Permit Nos. 13-30-0364-6E and 13-30-3984. The drawings which accompanied the permit application carried the designation "FUEL" on the large platform at the end of the center pier of the marina. The cover letter from Respondent's authorized agent explained that " .
. . the fueling area has been made sufficiently large so as to isolate the fuel pumps." No specific mention was made in the application or supporting materials of any building to be constructed on the central pier, and none of the permit drawings initially filed with DER depict any such building. DER employees who processed the permit, however, knew at some time during the processing of the permit application that some sort of structure would likely be constructed on the platform at the end of the center pier, although the plans did not disclose such a building, and the agency made no inquiries about, nor requested any additional information from Respondent concerning the type of structure contemplated.
At the time of the issuance of Permit No. 13-30-0740-6E Respondent did not know the exact nature, size, or height of any structure that it might wish to build on the central platform. At the time, Respondent had only a conceptual idea of a structure that might accommodate the uses it contemplated for the platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings attached to Permit No. 13-30-0740-6E. That drawing was not initially filed with the original permit application, but was provided during the permitting process by Respondent prior to issuance of the permit.
Permit No. 13-30-0740-6E was issued to Respondent on October 27, 1977, pursuant to the authority granted DER under Chapters 253 and 403, Florida Statutes. Nowhere in the permit is there any reference to Section 258.165, Florida Statutes. The permit, by its expressed terms, authorized the following:
To construct a boat tie-up and fueling facilities [sic] for a public
marina. The facility will extend approximately 390 feet into Biscayne Bay from the bulkhead line. The dock will provide tie-up spaces for 20 boats and six fuel slips, and will contain floating oil collars in case of oil or gasoline spillage. This facility represents the final phase of a master plan which includes two other marinas with tie-up
facilities . . .
On January 11, 1979, some approximately fourteen months after issuance of the permit for the center pier, Respondent sent a letter to DER's West Palm Beach office which read as follows:
Enclosed please find a copy of a letter as sent to the Army Corps, re: the service facility you and I discussed for the already approved fuel dock (State No. 13-30-0740-6E) for the Plaza Venetia Marina. I also enclose copy of the plans.
Please review as quickly as possible since we intend to start construction on the marina within 30 to 45 days. (Emphasis added.)
Enclosed with the January 11, 1979, letter to DER was a copy of a January 11, 1979, letter to the Army Corps of Engineers which read as follows:
Recently I reviewed with [a Corps representative] the placement of
a small service accommodation facility on the already approved fuel dock for the Plaza Venetia Marina . . . I left a set of plans with [the Corps] at the Corps office in Miami Beach. The facility is in close keeping with
the permitted use of the marina. It will occupy less than half the already approved area of the fueling facility. It will be constructed on an already permitted facility. Included are a small bait and tackle shop; convenience store; captains' office; observation area and required bathrooms. The discharge from the bathrooms will flow directly into the main County sewer disposal system and will utilize a sewer pump-out facility located on
the fuel dock.
* * *
After carefully reviewing my existing permit, the limited nature of the facility described, and its sole purpose of servicing the already permitted marina, please advise me if any modifications are required.
I look forward to hearing from you
as quickly as possible on this matter since construction of the marina is projected to begin within the next
30 to 45 days.
A copy of the floor plan of the proposed building was attached to the January 11, 1979, letter received by DER. This floor plan indicates areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan is a storage area for electric carts to be used in servicing vessels utilizing the marina facility.
The record in this cause establishes that Respondent never intended its January 11, 1979, letter to DER to be a request for a permit modification or an application for a new permit. Instead, the letter was intended only as a request for DER review of and comments on the proposed structure to be built at the end of the central pier. DER representatives in its West Palm Beach office forwarded the letter to the Tallahassee office of DER. DER never responded either orally or in writing to Respondent's communication of January 11, 1979, enclosing the building plan.
On June 19, 1979, DER had opened its file No. 13-9916 in its standard form dredge and fill permitting section in Tallahassee in response to a letter received from Respondent requesting the addition of some dolphin pilings along the bulkhead at the Plaza Venetia Marina. The request from Respondent was treated as standard form application because the scope of the entire marina project exceeded short-form criteria. After receiving this request from Respondent, DER sent a completeness summary to Respondent within 30 days of receipt of the application requesting that Respondent provide approval from the Department of Natural Resources for the use of sovereignty submerged lands. Through various correspondence, this application was expanded to include several additional modifications to the overall marina, including reconfiguration of the fuel dock, addition of finger piers, reconfiguration of the "T" docks, and addition of a 12-foot boardwalk. Finally, the application was modified so that it constituted an application to consolidate the three existing permits. On January 29, 1980, Respondent submitted the last item of information required by the completeness summary except for DNR approval for use of sovereignty submerged lands.
The aforementioned letter of January 11, 1979, from Respondent, which included the building floor plan, was apparently placed in DER file No. 13-9916 relating to Respondent's requested permit modification. Although the floor plan is contained in this file, the record in this cause clearly establishes that neither Respondent nor DER treated either the January 11, 1979, letter or the enclosed plan as a request for modification of Permit No. 13-30-0740-6E.
DER file No. 13-9916 sat dormant for almost three years awaiting DNR consent for the use of state-owned lands. By letter dated July 10, 1981, DER requested Respondent to indicate whether it wished to pursue the permit modification application further since it had been 1,085 days since DER had notified Respondent of the necessity to furnish notification from DNR concerning further use of state sovereignty submerged lands. By letter dated July 15, 1981, Respondent withdrew its permit modification application.
On April 20, 1979, the City of Miami issued a valid building permit for the marina fueling station. Respondent notified DER in July, 1979, that it was beginning construction of the marina. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 28, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981.
Subsequent to the commencement of construction DER representatives inspected the building site on several occasions. Respondent was not made aware in advance of when these inspections would occur since they were scheduled at the sole discretion of DER.
DER first learned of the actual construction of the marina fueling station after receipt of a citizen complaint on December 1, 1981. Upon
inspection of the site by DER personnel on December 2, 1981, it was discovered that the building on the fuel dock was partially complete with finish work and the placement of some interior and exterior walls remaining to be accomplished.
DER served a warning notice on Respondent on December 7, 1981, advising Respondent of an alleged violation of its existing permit. A second warning letter was sent to Respondent on January 26, 1982, followed by the issuance of the Notice of Violation by DER. DER incurred costs and expenses of
$405.40 in investigating the alleged violation.
The structures authorized by Permit Nos. 13-30-0364-6E, 13-30-3984, and 13-30-0740-6E ("the structures") have been constructed by Respondent. The structures are located within the Biscayne Bay Aquatic Preserve ("the Preserve") established by Section 258.165, Florida Statutes. Biscayne Bay at the site of the structures is a navigable water of the State of Florida.
A building with a floor area of approximately 3,800 square feet and a roof area of 5,292 square feet has been constructed at a cost of approximately
$500,000 on the platform at the end of the center pier of the marina. The net area of the platform contains about 9,640 square feet. It has been stipulated by the parties that construction of the building on the center pier will not result in significant adverse water quality or biological impacts which were not contemplated when the above-referenced permits were issued for the marina.
The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant's room with cash register and equipment for the fuel pumps. All of these uses are customarily associated with the operation of marina facilities.
The building as constructed differs in several minor respects from the one shown on the plans submitted to DER in the January 11, 1979, letter from Respondent. What had been shown on those plans as outdoor seating has been enclosed, walls and proposed uses have been relocated within the building, and the entire building has been moved back on the fuel dock. It is concluded, however, that these changes are of such a minor nature as to not constitute a material departure from the plans furnished to DER in January of 1979.
As-built plans for the building have never been provided by Respondent to DER. At the time of Respondent's application for the permit for the center pier, DER rules required that a permit applicant provide cross-sectional drawings of proposed structures to be built in conjunction with docking facilities such as those proposed by Respondent. Drawings attached to the permit application show two cross sections through the center pier, but neither of these cross sections depict a building to be constructed on the pier. Respondent did not submit cross-sectional drawings for the building at the time of its application, and none had been submitted to DER as of the date of final hearing in this cause. However, DER at no time requested such cross-sectional drawings, despite the fact that those agency representatives processing Respondent's permit application assumed from the outset that some structure would and could be built by Respondent on the platform attached to the central dock under the terms of the October 27, 1977, permit.
The estimated cost for removal of the building at the end of the central pier is $150,000-$200,000.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to this proceeding. Section 120.57(1), Florida Statutes.
As hereinbefore indicated, DER voluntarily dismissed Counts I, II, III, and V of the Notice of Violation. Accordingly, only Counts IV and VI of the Notice of Violation, together with the accompanying Conclusions of Law and Orders for Corrective Action associated with those counts remain for determination herein. Specifically, Counts IV and VI of the Notice of Violation and the Conclusions of Law and Orders for Corrective Action related to those counts provide as follows:
COUNT IV
Permit No. 13-30-0740-6E authorize the construction of a boat tie-up and fueling facilities. The permit did not authorize
the construction of any building or structure on the dock other than that which was specifically described in the permit.
Within the last six months, respondent has constructed a two-story building on the eastern end of the dock authorized
by Permit No. 13-30-0740-6E. The building is approximately 4,554 square feet in area, and is to serve as a dock master's office, bait and tackle shop, and convenience store.
Permit No. 13-30-0740-6E did not authorize the construction of the building referred to in paragraph 25.
Respondent has never applied for or received a permit from the Department
for the construction of the building referred to in paragraph 25.
COUNT VI
31. The department has incurred costs and expenses to date in investigating this matter in the amount of $405.40. CONCLUSIONS OF LAW
* * *
The building construction described in Count IV constitutes an activity for which a permit is required pursuant to Florida Administrative Code Rule 17-4.29(1)(c). Respondent's failure to obtain a permit for this work constitutes a violation of Section 403.161(1)(b), Florida Statutes, which makes it a violation of Chapter 403 to fail to obtain any permit required by Department rule.
The facts related in Count IV
constitute a violation of Section 403.161(1)(b)
Florida Statutes, which makes it a violation of Chapter 403 to violate or fail to comply with any permit issued by the Department pursuant to its lawful authority.
37. [Permit No. 13-30-0740-6E]. . . [was]
issued pursuant to the authority of Chapters
253 and 403, Florida Statutes. A Chapter 253 permit incorporates the stricter requirements of Chapter 258 where appropriate. The facts related in Count IV constitute a violation of Section 258.165(3)(c), Florida Statutes, which prohibits the erection of structures other than docks within the Biscayne Bay Aquatic Preserve. The construction of the building
is contrary to the legislative intent expressed in Section 258.165(3)(c), that '. . . Biscayne Bay be preserved in an essentially natural condition so that its biological and
values may enure for the enjoyment of future generations.'
* * *
39. The expenses related in Count VI constitute reasonable expenses of the state
in tracing, controlling and abating the alleged violations. These expenses are recoverable
by the Department pursuant to Section 403.141(1), Florida Statutes.
ORDERS FOR CORRECTIVE ACTION
The Department has alleged that the activities related in the Findings of Fact constitute violations of Florida law. The Orders for Corrective Action state what you, respondent, must do in order to correct and redress the violations alleged in this Notice. The Department has determined that the following corrective actions are reasonable
and can be accomplished within the time periods indicated.
* * *
Respondent shall remove the unpermitted building located on the center pier of the marina within thirty days of the effective date of these Orders. The building shall be removed in such a manner that the remaining dock is in conformance with Permit No. 13-30-0740-6E.
Respondent shall make payment of $405.40 to the order of the "Pollution Recovery Fund!? within fifteen days of the effective date of these Orders . . .
Section 403.161(1)(b), Florida Statutes, prohibits the failure
. . . to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.
Rule 17-4.29(1), Florida Administrative Code, provides, in pertinent part that:
Subject to the statutory limitations and exemptions of Sections 403.501-
515 and 403.813(1) and (2), Florida Statutes, and as otherwise limited by general or special statute or department rule, the following activities at or below the line of mean high water or ordinary high water in, on, or over
the navigable waters of the State require a department permit:
* * *
(c) Marina construction, maintenance and installation and/or docks, wharfs, piers, walkways and living quarters or dwelling type structures thereon and/or mooring pilings, dolphins and similar structures and/or boat ramps, lifts or similar launching facilities and/or ski ramps or other similar water structures.
Section 258.165(3), Florida Statutes, provides, in pertinent part, as follows:
AUTHORITY OF TRUSTEES.--The Board of
Trustees of the Internal Improvement Trust Fund is authorized and directed to maintain the aquatic preserve hereby created pursuant and subject to the following provisions:
(c) There shall be no . . . erection of structures other than docks within
the [Biscayne Bay Aquatic Preserve] unless such activity is associated with activity authorized by this section.
In administrative proceedings, the law of Florida is clear that the party asserting the affirmative of an issue bears the burden of proving its allegations by a preponderance of the evidence. Agrico Chemical Co. v. State,
365 So.2d 759 (Fla. 1st DCA 1978); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
In Bowling v. Department of Insurance, 394 So.2d 165, 171-172 (Fla. 1st DCA 1981), the court held that:
In proceeding under a penal statute
for suspension or revocation of a valuable business or professional license, the
term substantial competent evidence takes on vigorous implications that are
not so clearly present on other occasions for agency action under Chapter 120.
Although all questions of fact as distinguished from policy are determinable
under the Administrative Procedure Act by substantial competent evidence
we differentiate between evidence which 'substantially' supports conventional forms of regulatory action and evidence
which is required to support 'substantially' a retrospective characterization of conduct requiring suspension or revocation
of the actor's license. Evidence which is 'substantial' for one purpose may be less so on another, graver occasion. . .
. . . Now we recognize also that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical findings in license revocation . . . [W]e glean
a requirement for more substantial evidence from the very nature of license
discipline proceedings; when the standards of conduct to be enforced are not explicitly fixed by statute or by rule . . .; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and
when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences. In anyone's judgment, a judge's no less than any other, certain factors present 'in the record' of
penal proceedings fairly detract
from the substantiality of evidence which is weighty enough for less consequential
purposes. One such factor is a grave penalty. In determining 'the substantiality of evidence,' which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason
that compels him, in ascertaining the law, to impose a 'strict' construction on the penal statute . . .
. . . [T]he violation of a penal statute
is not to be found on loose interpretations and problematic evidence, but the violation must in all its implications be shown by evidence which weighs as 'substantially' on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let the
prosecutor's proof be as serious-minded as the intended penalty is serious. (Emphasis added.)
Section 120.60(2), Florida Statutes, provides, in part, as follows:
When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of
all affected parties or aggrieved persons.
Within 30 days after receipt of
an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an
error or omission or to supply additional information shall not be grounds
for denial of the license unless the agency timely notified the applicant within this 30-day period. The agency shall notify the applicant if the activity for which he seeks a license
is exempt from the licensing requirement
. . . Each agency, upon issuing a license, shall statewide particularity the grounds or basis
for the issuance . . . of same . . . (Emphasis added.)
As indicated above, DER has alleged in the Notice of Violation that construction of the building by Respondent at the end of the central pier (1) constitutes a violation of Permit No. 13-30-0740-6E; (2) constitutes a violation of Section 403.161(1)(b), Florida Statutes, and Rule 17-4.29(1)(c) Florida Administrative Code, for failure to obtain a required permit; and (3) constitutes a violation of Section 258.165(3)(c) Florida Statutes, which prohibits the erection of structures other than docks within the Biscayne Bay Aquatic Preserve. Also as indicated above, DER bears the burden of proving each of these allegations by a preponderance of the evidence. It is specifically concluded, as a matter of law as hereinafter further explained, that DER has failed to sustain its burden of proof as to each of the alleged violations.
The permit at issue in this cause authorizes Respondent to construct and operate "fueling facilities" or a "fueling station" in connection with its marina facility. Neither the permit nor any rule in effect when DER issued the permit defines either "fueling facility" or "fueling station." The evidence of record in this cause does not establish any agency policy which would furnish any further explication of agency interpretation of these terms. As previously indicated, DER rules in effect at the time the permit in this cause was issued required the filing of cross-sectional drawings in the permit application process. Respondent filed cross-sectional drawings with respect to a portion of the project, but not for the fuel platform where the disputed building has been constructed. For some reason not explained in this record, DER chose not to request additional information concerning the character or design of any
improvements which might ultimately be constructed on the fuel platform, notwithstanding the fact that DER employees were made aware prior to issuance of the permit that Respondent intended to erect some structure on the fuel platform. Further, DER also chose for some reason not reflected in this record not to include any condition in the permit requiring Respondent to furnish additional information concerning any such proposed structure prior to commencement of construction. DER chose instead to affix the ambiguous appellation "fueling facility" or "fueling station" to the permitted structure. DER now seeks to take corrective action against Respondent for construction of the disputed building on the grounds that the building was not shown the plans submitted to DER in the permitting process. In fact, the drawings attached to and incorporated by reference in the permit itself show no improvements on the platform at the end of the central pier. To accept the construction of the permit urged by DER would defeat the entire purpose for which Respondent sought a permit for the "fueling facility," because that construction would prohibit even the installation of fuel pumps on the central pier. It is abundantly clear from the record in this proceeding that DER does not object to the fact of construction on the platform at the end of the central pier, but instead takes exception to the character and magnitude of the structure erected by Respondent. Clearly, both DER and Respondent at all times during the permitting process contemplated the erection of some structure to act as a "fueling facility" or "fueling station" on the platform at the end of the central pier. DER was afforded ample opportunity within the structures of Section 120.60(2), Florida Statutes, to gain further enlightenment concerning Respondent's intentions either by requesting additional information or stating ". . . with particularity the grounds or basis for the issuance . . ." of the disputed permit. Instead, DER chose to permit the construction and operation of a "fueling facility" or "fueling station" without further description. The evidence in this cause establishes that the structure erected by Respondent and the uses proposed for that structure comport with a reasonable construction of the terms "fueling facility" or "fueling station." It should be emphasized here that this is not a situation in which Respondent has attempted to gain unfair advantage from an agency oversight. To the contrary, from the date of filing of the permit application Respondent made known to DER its intention to place some structure at the end of the central pier and, although the permit did not impose such a requirement on Respondent, Respondent furnished plan-view drawings which, in all material respects, reflected the structure ultimately placed on the fueling platform some 14 months after issuance of the permit and over two years prior to commencement of construction of the building itself. Despite having received Respondent's interpretation of the language, along with Respondent's notification of its intention to act in accordance with that interpretation, DER failed to respond to that notification. As quoted with approval by the Florida Supreme Court in Daniell v. Sherrill, 48 So.2d 736, 739 (Fla. 1950), ". . . [i]f we say with Mr. Justice Holmes, 'men must turn square corners when they deal with the Government,' it is hard to see why the Government should not be held to a like standard of rectangular rectitude when dealing with its citizens." In the present case, Respondent acted reasonably in assuming that DER had acceded in Respondent's interpretation of the ambiguous language of the permit after Respondent had furnished plan-view drawings clearly indicating its intention to begin immediate construction of the building at the terminus of the central pier. Accordingly, under the standards enunciated in Bowling, supra, DER has failed to establish that construction of the building on the platform at the end of the central pier constitutes a violation of Permit No. 13-30-0740-6E.
DER next contends that Respondent violated Rule 17-4.29(1)(c), quoted above, by failing to obtain a necessary permit, thereby also violating Section 403.161(1)(b), Florida Statutes. Rule 17-4.29, Florida Administrative Code, by
its own terms applies ". . . only in regard to the requirements of Chapter 253,
F.S. . . ." Chapter 253 gives DER regulatory jurisdiction over dredging and filling operations in or adjacent to navigable waters of the state. Chapter 403, Florida Statutes, gives DER regulatory authority over stationary installations which may reasonably be expected to be a source of air or water pollution, and over discharges of wastes into waters of the state. The record in this proceeding establishes that construction of the building at the terminus of the central pier did not require any dredging or filling in addition to than reviewed by DER when the permit was initially issued on October 27, 1977, and the parties have stipulated that the construction of the building ". . . will not result in significant adverse water quality or biological impacts which were not contemplated when the [permit was] issued for the marina." Additionally, the record in this cause also establishes that the disputed structure does not constitute a "dwelling type structure" within the meaning of Rule 17-4.29(1)(c), Florida Administrative Code. Accordingly, DER has failed to establish any claim for relief under the provisions of Chapters 253 or 403, Florida Statutes, or Rule 17-4.29(1)(c), Florida Administrative Code.
Finally, DER also asserts that Respondent, by construction of the disputed building, has violated Section 258.165(3)(c), Florida Statutes, which, according to the Notice of Violation, ". . . prohibits the erection of structures other than docks within the Biscayne Bay Aquatic Preserve." This contention is without merit for two reasons. First, Permit No. 13-30-0740-6E, by its own terms, indicates that it was issued pursuant to the authority contained in Chapters 253 and 403, Florida Statutes. No mention is made in the permit of Section 258.165(3)(c), Florida Statutes. Although the Notice of Violation asserts that ". . . [a] Chapter 253 permit incorporates the stricter requirements of Chapter 258 where appropriate this assertion is unsupported either in fact or in law. The terms of the permit itself did not incorporate any of the requirements of the Biscayne Bay Aquatic Preserve Act, and nowhere in Chapter 253, Florida Statutes, is there any legislative provision for incorporation of the requirements of Chapter 258, Florida Statutes, in permits processed pursuant to Chapter 253. Secondly, the Board of Trustees of the Internal Improvement Trust Fund is the state agency mandated by Section 258.165, Florida Statutes, to maintain the Biscayne Bay Aquatic Preserve. Nowhere in Section 258.165, Florida Statutes, is DER given any permitting or other regulatory authority over the Preserve. Many of the permitting functions previously performed by the Board of Trustees were transferred to DER when DER was created by Ch. 75-22, 11, Laws of Florida. None of the Trustees' authority under Section 258.165, Florida Statutes, was expressly transferred to DER when the agency was created. Accordingly, it is specifically concluded that, under the circumstances here present, DER lacks authority under Section 258.165, Florida Statutes, to assert a violation of that section as grounds for relief in this Notice of Violation. See, Council of the Lower Keys v. Dept. of Environmental Regulation, 429 So.2d 67 (Fla. 3 DCA, 1983).
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation.
DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983.
COPIES FURNISHED:
Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Clifford A. Shulman, Esquire and
Thomas K. Equels, Esquire Brickell Concours
1401 Brickell Avenue, PH-1 Miami, Florida 33131
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Lee Rohe, Esquire
Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32303
Elton Gissendanner, Director Department of Natural Resources Executive Suite
3900 Commonwealth Boulevard
Tallahassee, Florida 32303
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Petitioner,
v. CASE NO. 82-1640
FLORIDA EAST COAST PROPERTIES, INC.,
Respondent.
/
FINAL ORDER
On June 3, 1983, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to the Department of Environmental Regulation ("Department"). A copy of the Recommended Order is attached as Exhibit A. On June 20, 1983, counsel for the Department filed Petitioner's Exceptions to Recommended Order.
BACKGROUND
This action arises from the Department's issuance of a Notice of Violation to Florida East Coast Properties, Inc. (the "Respondent") alleging that the Respondent illegally constructed a building on a permitted dock. Specifically, the Department alleged violations of the previously issued marina permit; of Florida Administrative Code Rule 17-4.29(1)(c), which requires a permit for certain activities on or over navigable waters of the state; and of Section 258.165(3)(c), Florida Statutes, which prohibits erection of structures other than docks within the Biscayne Hay Aquatic Preserve. In recommending dismissal of the Notice of Violation, the hearing officer specifically held that Department employees contemplated construction of some structure on the pier to serve as a fueling facility and did not request additional information within the time frame allowed by statute. The hearing officer also concluded that construction of the fueling facility did not constitute a violation of Rule 17-
4.29 because the fueling station was not a living or dwelling type structure. Finally, the hearing officer found that there was no statutory authority for the Department to consider the standards of Chapter 258, Florida Statutes, relating to aquatic preserves when processing permit applications under Chapter 253, Florida Statutes.
RULINGS ON EXCEPTIONS
Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-1.68, Counsel for the Department has filed exceptions to both findings of fact and conclusions of law contained in the
Recommended Order. The exception characterized as an exception to findings of fact does not request that a particular finding of the hearing officer be rejected; in stead it requests that an additional finding of fact be made as follows:
DER regularly applies the Biscayne Bay Aquatic Preserve Act in making its permitting decisions in the preserve and DER conducts public hearings on projects proposed for the preserve. Projects in the aquatic preserve are scrutinized more carefully in order to afford a higher measure
of protection, as DER believes this is required by Section 258.165, Florida Statutes. Biscayne Bay hearings were held for the three permits which were issued for Respondent's docking facilities.
DER policy and practice is not to permit buildings such as Respondent's in the Biscayne Bay Aquatic Preserve. Such multi- purpose buildings are not essential to the operation of a marina and are therefore not 'associated' with the marina as required by the aquatic preserve act. DER has initiated enforcement action against a dock owner who placed a small, movable, lattice-type gazebo
on his dock because it was not consistent with the aquatic preserve act. DER has permitted small gazebos on docks in the aquatic preserve, but they are unenclosed, roofed structures less than one-fiftieth the size
of FEC's building.
On April 15, 1983, counsel for the Department filed a Proposed Recommended Order with the hearing officer containing findings of fact and conclusions of law. That Proposed Recommended Order included specific findings of fact regarding the agency's practice in permitting activities located within aquatic preserves. The proposed findings of fact were essentially identical to the ones set forth above.
In his Recommended Order, the hearing officer does not explicitly rule on any of the proposed findings of fact relating to the applicability of Chapter 258, Florida Statutes. Instead, the Recommended Order contains the following statement:
To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues
involved in this proceeding, or as not having been supported by evidence of record.
It has long been the law under Chapter 120.57, Florida Statutes, that a hearing officer must make explicit rulings on all proposed findings of fact unless the finding is subordinate, cumulative, immaterial, or unnecessary. Wong
v. Career Serv. Comm'n, 371 So.2d 530 (Fla. 1st DCA 1979); Stuckey's of Eastman, Ga. v. Dept. of Transp., 340 So.2d 119 (Fla. 1st DCA 1976).
In a recent case before the First District Court of Appeal, this rule was reiterated. In Pelham v. Whaley, 8 FLW 1843 (Fla. 1st DCA, opinion filed July 13, 1983), the hearing officer had addressed certain proposed findings of fact with the simple statement that the proposed findings were incorporated into the recommended order to the extent they were relevant and consistent with the evidence. The court found that this was not the type of explicit ruling required by Section 120.59(2), Florida Statutes, since it did not give the appellee even a clue as to why particular proposed findings of fact were being omitted.
The statement of the hearing officer in this case ruling on proposed findings of fact has substantially the same effect as in the Pelham case. In light of the holding in that case I find it is incumbent on me as agency head to review the record to determine whether the proposed finding at issue here is either irrelevant or not supported by the evidence, as suggested by the hearing officer.
The proposed findings of fact offered by counsel for the Department relate to the agency's past practice in permitting structures in aquatic preserves.
Since it is undisputed that the Respondent's marina is within the Biscayne Bay Aquatic Preserve, there is no basis for rejecting the proposed findings on the basis of irrelevancy. Moreover, a review of the record reveals uncontradicted competent substantial evidence to support the proposed findings of fact.
Therefore, I specifically adopt the additional findings of fact as set forth above.
Counsel for the Department has also filed exceptions to two of the hearing officer's conclusions of law. First, he challenges the hearing officer's application of the standard of proof enunciated in Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), to the instant case. In Bowling, the court held that, while the standard of proof in all proceedings under Chapter 120 is competent substantial evidence, the evidence in certain proceedings may have to be more "substantial" than in others. The court identified three situations in which this might occur:
when the standards of conduct to be enforced are not explicitly fixed by statute or rule, when the conduct to be assessed is past,
beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable business or professional license.
Id. at 172.
After quoting the language from Bowling, the hearing officer applies it in determining whether there was a violation of the permit conditions contained in the Respondent's marina permit.
A careful review of the record in this case and the facts of the Bowling case lead me to conclude that the standard of proof enunciated in the latter case is not applicable here. The Department has not sought to revoke Respondent's permit. Instead, the Notice of Violation which is the subject of this action simply alleges that the Respondent was in violation of his permit in constructing a structure on a permitted pier.
Neither does this action fall into the other two categories enunciated by the Bowling court. It is clear from the record as set out in the additional findings of fact adopted previously that the agency's standards were not announced prospectively. The agency's practice in permitting structures in aquatic preserves has been in effect for some time. The standards of conduct expected of the Respondent were clearly set forth by agency policy. The court in Bowling recognized that the issue in that case was "not Department policy . .
. rather the issue is over a plain, garden-variety fact". Id. at 174.
Moreover, it was an adjudicative fact as opposed to a legislative fact, and thus devoid of policy consideration. The court recognized that if an issue of agency policy had been involved that a different result might have been obtained. In the Bowling case, the standards of conduct to be applied were not a matter of agency policy but a factual matter best determined by the trier of fact. That is not the situation in this case.
The present situation presents a relatively simple enforcement action by the Department. While the standard of proof set out in Bowling may well be applicable to certain enforcement actions, it is not appropriate here and I specifically reject the hearing officer's conclusion of law on that point.
Likewise, I must reject the hearing officer's conclusion that the provisions of Section 258.165, Florida Statutes, do not apply.
Section 258.165, Florida Statutes, was enacted by the Legislature in 1974. Chapter 74-171, Laws of Florida. That Act established the Biscayne Bay Aquatic Preserve, designated the Board of Trustees of the Internal Improvement Trust Fund (BTIITF) as the entity responsible for managing the preserve, and established certain criteria to be met for dredging and filling activities in the preserve. The act did not create a separate permitting scheme for such activities; instead, those criteria have been applied in the context of other permitting requirements, specifically Chapter 253, Florida Statutes. In 1975, the Department of Environmental Regulation was created and all dredge and fill permitting authority under Chapter 253 was transferred to the Department.
Chapter 75-22, Laws of Florida. The hearing officer concludes that since Chapter 75-22 did not specifically transfer any provision of Chapter 258 to the Department, that all authority is retained by the BTIITF. The problem, however, is that the BTIITF no longer issues dredge and fill permits. That authority was explicitly transferred to the Department, and with it, implicitly came the authority to consider the criteria established by Chapter 258.
This authority has been consistently asserted by the Department and recognized in numerous final orders. See, In the Matter of Bernard Berkley, Case No. 75-076 (Final Order entered January 28, 1976), rev'd on other grounds Berkley v. Department of Regulation, 358 So.2d 552 (Fla. 1st DCA 1977); In the Matter of Brickell Biscayne Tower, Inc., Case Nos. 75-040N, 75-007(11)(12), 75- 041N (Final Order entered February 20, 1976); City of Miami v. Department of Environmental Regulation, Case No. 78-2183 (Final Order entered September 28, 1979); Hernstadt Broadcasting Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1702 (Final Order entered July 6, 1981), Appeal dismissed, So.2d , (Fla. 1st DCA, 1982).
Where the Department has authority to consider the criteria of Chapter 258 in issuing dredge and fill permits in aquatic preserves, it necessarily must have the corollary authority to enforce the terms of that permit. Therefore, I reject the hearing officer's conclusion of law to the extent that he finds the
Department without authority under Chapter 258 to consider the criteria of the Biscayne Bay Aquatic Preserve Act.
My rejection of these conclusions of law, however, does not require that I either remand the case to the hearing officer as requested by counsel for the Department or that I overturn the hearing officer's ultimate recommendation. I reach this conclusion because I accept the hearing officer's conclusion of law that the Department failed to comply with the strictures of Section 120.60(2), Florida Statutes, which provides that an agency may not deny a permit based on some error or omission in the application unless it timely requests additional information. In this case the evidence is uncontroverted that the Respondent received a permit to construct a pier with a fueling facility. Although it was clearly within the agency's authority to request additional information about the design of the fueling station, the Department failed to do so. The fact that the Department might have denied the permit had it had complete information is irrelevant under the provisions of Section 120.60.
The hearing officer concluded that the term fueling station as used in the permit could reasonably be construed to include the type of structure eventually constructed by the Respondent. He also concluded that any potential ambiguity in the language of the permit was cleared up by the subsequent submission of detailed plans in a letter to the Department. While I agree that the hearing officer's conclusions on this point were correct in the context of this case, I generally would reject any interpretation of this order that would allow a permit applicant to bind the Department to a position by writing a letter and imposing an arbitrary deadline on the Department for responding. In this case, the hearing officer specifically found that the letter from the applicant did not constitute a modification to a permit application or change in any way the permitted project.
MISCELLANEOUS RULINGS
One further issue raised by the Recommended Order must be clarified. The hearing officer concluded as a matter of law that the Department could not require a permit for the fueling station itself under Florida Administrative Code Rule 17-4.29(1)(c) because that section only applies to
(c) Marina construction, maintenance and installation and/or docks, wharfs, piers, walkways and living quarters or dwelling type structures thereon . . .
(Emphasis added).
The hearing officer found that the structure in dispute did not constitute a dwelling type structure.
The hearing officer's interpretation of Rule 17-4.29(1)(c) is directly contrary to the Department's interpretation of that provision. The record in this case reflects the fact that the Department has required permits under this section for structures such as small gazebos on docks. Respondent's fueling facility is certainly as much a "dwelling type" structure as a gazebo would be.
The Recommended Order reflects no basis for the hearing officer's refusal to accept the Department's interpretation of a rule which it is responsible for enforcing. While the agency's interpretation of its rule is pot controlling, it is certainly entitled to great weight and should not be rejected unless it is
clearly erroneous. Warnoch v. Florida Hotel and Restaurant Commission, 178 So.2d 917 (Fla. 3rd DCA 1965). I must reject the hearing officer's conclusion of law on this point.
Again, for the reasons stated above, the rejection of this conclusion does not require that the hearing officer's ultimate recommendation be overturned.
ORDER
Accordingly, having considered the Recommended Order, the record and pleadings in this case, it is hereby
ORDERED that:
The hearing officer's findings of fact and conclusions of law, as modified by this order, are adopted by the Department.
The Notice of Violation issued by the Department on April 20, 1982, against Respondent is dismissed.
DONE AND ENTERED this 1st day of September, 1983.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.
9/1/83
Patti Mullinax Date
Clerk
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by hand-deliver to Paul R. Ezatoff, Jr., Esquire, Assistant General Counsel, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301, and true copies of same by U.S. Mail to Clifford A. Shulman, Esquire, Brickell Concours, 1401 Brickell Avenue, PH-1, Miami, Florida 33131; William E. Williams, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and Lee Rohe, Esquire, Assistant Department Attorney, Department of
Natural Resources, 3900 Commonwealth Boulevard, Tallahassee, Florida 32303, this 1st day of September, 1983.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
MARY F. SMALLWOOD
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Sep. 06, 1983 | Final Order filed. |
| Jun. 03, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 01, 1983 | Agency Final Order | |
| Jun. 03, 1983 | Recommended Order | Department of Environmental Regulation (DER) was not expressly authorized to exercise authority formerly vested in Trustees in administering the Biscayne Aquatic Preserve. Dismiss complaint. |
