STATE OP FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF NATURAL RESOURCES, )

)

Petitioner, )

)

v. ) CASE NO. 85-2777

)

ROBERT H. HATFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on May 14, 1986, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, in Vero Beach, Florida. Petitioner was represented by counsel Respondent made no appearance.

APPEARANCES

For Petitioner: Andrew S. Grayson, Esquire

3900 Commonwealth Blvd.

Tallahassee, Florida 32303 For Respondent: No Appearance.

ISSUE_

Whether Respondent should be assessed a civil fine of $500 for scraping or bulldozing beach sand, without a permit, on his coastal property seaward of the Indian River County Coastal Construction Control Line in violation of Section 161.053, Florida Statutes (1985).

BACKGROUND

On August 6, 1985, Robert H. Hatfield ("Respondent") petitioned for a Section 120.57(1) hearing to contest a "Final Order" entered by Petitioner, Department of Natural Resources ("Department") assessing a $500 fine for scraping or bulldozing beach sand seaward of a coastal construction control line without the required permit.1

On August 12, 1985, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was subsequently set for December 20, 1985, then--on the Department's unopposed motion--continued and reset for February 24, 1986. In February 1986, Respondent requested a continuance based on his inability to attend due to hospitalization. Without opposition, the request was granted and hearing was reset for May 14, 1986.

On May 13, 1986--the day before the hearing--Respondent's secretary telephoned the undersigned and advised that Respondent was in Nevada and may not attend the hearing that he apparently thought the hearing was set for May 24, 1986 (a Saturday)-- despite a written order indicating otherwise; and that she had informed him that morning the hearing was scheduled for the next day. Despite Respondent's knowledge that the hearing would take place the next day, he neither objected to, nor requested a continuance of, the hearing.

At final hearing, the Department presented the testimony of Lt. Ray Barker, Vero Beach Police Department Barry Manson-Hing, the Department's area engineer C.E. Taylor, the Department's area inspector and Gilford L. Hill, coordinator of the Department's Office of Administrative Enforcement. Department Exhibit Nos. l through 7 were received in evidence. Respondent did not attend the hearing and was not represented.

No transcript of hearing has been filed. The Department filed proposed findings of fact Nos. l through 7 on June 11, 1986, which findings are approved and incorporated herein.

Respondent filed no proposed findings of fact.

Based on the evidence adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he

   could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent.

   
   

2. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4)

   
   

3. On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order.

   
   

4. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department.

   
   

5. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has juris- diction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).

   
   

7. Section 161.053(2), Florida Statutes, provides in pertinent part:

   
   

   Upon the establishment, approval, and

   recordation of such control line or lines, no person, firm, corporation, or governmental agency shall construct any structure whatsoever seaward thereof: make any excavation, remove any beach material, or otherwise alter existing ground elevations . . . .

   
   

8. The Department is authorized to issue permits which, under limited conditions, authorize alteration, excavation, or construction on property seaward of established coastal construction control lines. See, Section 161.053(5), Fla. Stat. (1985) Chapter 16B-33, Fla. Admin. Code.

   
   

9. Section 161.054(1), Florida Statutes, in pertinent part, authorizes the Department to fix, impose, and collect administrative lines of up to $10,000 for willful violations of Section 161.053. Any fine imposed creates a lien upon the real and personal property of the violator, and is enforceable as a statutory lien under Chapter 85. Section 161.054(3), Fla. Stat. (1985).

   
   

10. The evidence convincingly establishes that Respondent knowingly and willfully violated Section 161.054(1) by excavating and removing beach sand and altering ground elevations seaward of an established coastal construction control line. He did so without authorization and in violation of a clear proscription contained in an emergency permit issued him earlier. No mitigating evidence has been presented. An administrative fine of $500, as proposed by the Department is reasonable and appropriate.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action.

DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida.

R. L. CALEEN, JR.

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 the 20th day of June, 1986.

ENDNOTE

1/ The previous style of this case, Robert H. Hatfield v. Department of Natural Resources, is reversed to more accurately reflect that this is an administrative enforcement action where the agency is the initiating party and has the burden of proof.

COPIES FURNISHED;

Andrew Grayson, Esquire 3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Robert H. Hatfield Realcor Partners

2045 Peachtree Road, N.E. Suite 700

Atlanta, Georgia 30309

Docket for Case No: 85-002777

Orders for Case No: 85-002777