STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. SULLIVAN, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 91-0282

)

T.L.C. PROPERTIES and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on May 2, 1991. Respondent Department of Environmental Regulation filed a proposed recommended order on May 14, 1991, in which respondent T.L.C. Properties joined by letter received May 16, 1991. Petitioner's proposed recommended order was filed on May 20, 1991. The attached appendix addresses proposed findings of fact by number.

APPEARANCES

For Petitioner: John L. Sullivan, Jr.

Post Office Box 1298 Wewahitchka, Florida 32465

For Respondent Bill R. Hutto, Esquire

T.L.C. Properties: Hutto, Nabors, Bodiford and Warren

101 East 23rd Street

Panama City, Florida 32405

For Respondent Richard L. Windsor, Esquire Department of Department of Environmental Environmental Regulation

Regulation: 2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

Whether petitioner has standing to challenge a consent order negotiated by respondents to resolve an enforcement proceeding? If so, whether the consent order comports with statutes and rules regulating dredging and filling in wetlands?

PRELIMINARY STATEMENT

When petitioner observed dredging and filling near his home in Gulf County, he alerted the Department of Environmental Regulation (DER) in May of 1990.

After investigation, DER sent T.L.C. Properties (TLC) warning notices NWDF 23- 1249, 23-1250 and 23-1251. In November of 1990, DER entered a consent order reciting that TLC "had engaged in excavation and placement of fill in contiguous jurisdictional wetlands by the construction of 2,500 feet of roadway, 3 culverted road crossings and 150 feet of ditch excavation," without dredge and fill, stormwater or any other DER permit.

The consent order required TLC to stop building roads, "stabilize the culverted crossings, roadways and road shoulders," construct a stormwater treatment system, make application for any necessary permits before doing additional construction, and pay DER $3,650. Paragraph 17 of the consent order states: "Persons who are not parties to this order but whose interests are affected by this order have a right, pursuant to Section 120.57, Florida Statutes, to petition for an administrative determination (hearing) on it."

In response to the order, petitioner wrote DER a letter dated December 17, 1990, which DER treated as a request for formal administrative proceedings and referred to the Division of Administrative Hearings for hearing, in accordance with Section 120.57(1)(b), Florida Statutes (1990 Supp.). The letter has not been notarized or verified.

FINDINGS OF FACT

1. Without securing DER permits, TLC built two dirt roads, one perpendicular to the other, both in Gulf County, east and south of property petitioner John L. Sullivan, Jr. owns and lives on.

   
   

2. Between them, the roads, each 20 to 25 feet wide, traversed wetlands (recognized as such by DER regulations and the DER environmental specialist when he visited the site in May of 1990) in three separate places. None of the affected wetlands drain in the direction of petitioner's property.

   
   

3. TLC dredged and placed 36-inch culverts before filling at two of the sites, and placed fill at all three sites, constructing roadbed and shoulders.

   
   

4. One of the sites, connected by a 200-foot ditch to other wetlands, DER's Larry Taylor eventually characterized as "isolated." He directed TLC to fill the ditch to destroy the connection, on the theory this would divest DER of jurisdiction.

   
   

5. At hearing, John L. Sullivan, Jr. testified that the project had not affected him financially, and said he was affected only as a citizen of Florida. The wetlands crossed by the roads drain (or, in one instance, did drain before the ditch was filled) easterly to Stonemill Creek, which flows southeasterly toward the Dead Lakes.

   
   

   CONCLUSIONS OF LAW

   
   

6. Since DER referred petitioner's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

7. Despite the consent order's claim that "this order does not constitute a permit from the Department," the consent order does give TLC permission to maintain fill in wetlands on the conditions prescribed in the consent order. Accordingly, if petitioner is substantially affected, see generally Boca Raton

   Mausoleum, Inc. v. State of Florida Department of Banking and Finance, 511 So.2d 1060 (Fla. 1st DCA 1987), TLC has the burden to show entitlement to this permission.

   
   

8. Since the letter or petition with which the formal administrative proceedings began was not verified, the provisions of Section 403.412(5), Florida Statutes (1989) do not come into play. Cf. Cape Cave Corp. v. State of Florida Department of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1986) (reh. den. 1987)

   
   

9. In the absence of a verified petition, petitioner's testimony that he is affected only "as a citizen of Florida" does not amount to a showing that he is substantially affected within the meaning of Section 120.57(1), Florida Statutes (1990 Supp.), so as to be entitled to initiate formal administrative proceedings. Here petitioner proved no effect as a result of TLC's activities on any interest of his protected by statute. See Village Park Mobile Home Ass'n, Inc. v. State Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, 506 So.2d 426 (Fla. 1st DCA 1987).

RECOMMENDATION

It is, accordingly, recommended that DER dismiss the letter or petition with which these formal administrative proceedings began.

RECOMMENDED this 10th day of June, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0282

Petitioner's proposed finding of fact No. 1 has been adopted in substance. Petitioner's proposed findings of fact Nos. 2 and 3 pertain to immaterial matters.

Petitioner's proposed finding of fact No. 4 was not proven.

Respondent's proposed findings of fact Nos. 1, 2, 5, 6 and 10 (i.e. the final proposed finding of fact) have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, a parcel 96 feet by

60 feet was involved at only one of the three sites.

With respect to respondent's proposed finding of fact No. 4, the conclusion that "the jurisdictional aspect ceased to exist" is not adopted.

With respect to respondent's proposed finding of fact No. 7, whether the violation was "resolved" is a conclusion of law.

With respect to respondent's proposed finding of fact No. 8, the allegations of the petition were not proven.

With respect to respondent's proposed finding of fact No. 9, not all uncontradicted evidence has been credited.

COPIES FURNISHED:

Carol Browner, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

John L. Sullivan, Jr. Post Office Box 1298 Wewahitchka, FL 32465

Richard L. Windsor, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32399-2400

Bill R. Hutto, Esquire

Hutto, Nabors, Bodiford and Warren

101 East 23rd Street Panama City, FL 32405

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-000282

Orders for Case No: 91-000282