STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-7281
)
ELIZABETH MCSHEEHY, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Mary Esther, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 31, 1992. The Division of Administrative Hearings received the hearing transcript on May 8, 1992. The parties filed proposed recommended orders on June 1, 1992. See Rule 60Q-2.031, Florida Administrative Code.
APPEARANCES
Richard L. Windsor, Esquire For Petitioner: Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Elizabeth R. McSheehy For Respondent: 516 Mooney Road
Fort Walton Beach, Florida 32547 STATEMENT OF THE ISSUES
Whether petitioner should make final the orders for corrective action it proposed for the reasons stated in the notice of violation?
PRELIMINARY STATEMENT
By notice of violation and orders for corrective action dated September 16, 1991, petitioner alleged that it had issued, on "June 26, 1986 . . . permit #116890 to Respondent for construction of a bulkhead in waters of the State along [the shore of her lot on] Choctawhatchee Bay"; that this "permit expired on December 30, 1987"; that on "July 26, 1990 . . . investigation revealed that Respondent had constructed an unauthorized bulkhead . . . approximately 165 feet long, 20 feet westward of the MHWL . . . without a current permit"; that respondent's lot fronts "a Class II shellfish approved water of the state," and that respondent has violated "Sections 403.087(1) and 403.905, Florida Statutes and Florida Administrative Code Rules 17-4.03 and 17-312.060."
Petitioner seeks removal of the seawall and reimbursement of $245.37 in costs allegedly incurred in "tracing, controlling and abating the source of pollution." When respondent requested a formal administrative hearing, the Department of Environmental Regulation referred the matter to the Division of Administrative Hearings, as required by Section 120.57(1)(b)3., Florida Statutes (1991).
FINDINGS OF FACT
On June 26, 1986, the Department of Environmental Regulation (DER) issued a permit, No. 661168901, to Elizabeth R. McSheehy authorizing construction on the shore of Choctawhatchee Bay of a seawall 165 feet long and eight feet high "faced with rip-rap . . . and backfilled with 18 cubic yards of sand fill . . . in accordance with [an] attached map and drawing." Joint Exhibit No. 1.
The permit application had proposed that the seawall "TIE INTO MR. HEATH['S] SEAWALL," and the attached drawing indicated a point of beginning along the seawall already protecting the lot to the east, then owned by Mr. Heath, now owned by Prentice M. Thomas. The drawing has no compass rose and does not specify the angle of either leg of the permitted seawall.
The construction permit expired December 30, 1987 (well beyond the 120 days within which the application indicated it would be necessary to complete construction, once begun.) At hearing, the parties stipulated that Ms. McSheehy had erected or caused to be erected a seawall at the location permitted on or before December 30, 1987. DER does not dispute that the seawall functioned as such when built.
Seawall Fails
Ms. McSheehy received a letter from Mr. Thomas dated June 6, 1990 (in an envelope postmarked June 22, 1990) stating, "I recently visited my lot at Four Mile Post and regret to inform you that the seawall you installed on your property has been demolished by the winter and spring storms." Petitioner's Exhibit No. 2. The letter reported that her "lot was eroding at a rapid pace." Id.
Afraid that his own lot would be affected, despite its well-maintained seawall and rip-rap he had added, Mr. Thomas "beseech[ed her]. . . to take action to arrest the erosion of [he]r shoreline." Petitioner's Exhibit No. 2. The lot west of Ms. McSheehy's has no seawall. T. 48. Its shoreline had also eroded, judging from photographs in evidence.
Soon after receiving the letter, Ms. McSheehy inspected the property for the first time since the summer before. She found the piles on which the seawall had been constructed in 1986 or 1987, now standing as far as 30 feet out in the bay. Only the eastern 20 or 30 feet of the seawall remained intact. Remnants, including individual boards and wall fragments comprised of as many as four boards had washed up on the receded shoreline.
When DER's James Eric Buckelew happened on the site on July 26, 1990, he concluded from the erosion that the seawall had ceased to function as such some months before. Bay waters reached 20 or 30 feet further inland, covering about a tenth of an acre landward of what remained of the seawall. Mr. Buckelew took photographs of the site. Petitioner's Exhibit No. 1.
Seawall Now in Bay
Before the month ended and apparently before anybody from DER communicated with Ms. McSheehy, the seawall was rebuilt in its original location. No additional fill has been placed landward of the seawall, which now has water on both sides. In various trips to the site and otherwise in responding to this turn of events, DER has expended at least $245.37.
DER advised Ms. McSheehy that a permit could be issued for construction of another seawall along what seems to be the new mean high water line, but that she had acted illegally in having the seawall restored at a location now some 20 or 30 feet out in the Bay. (T. 115).
After first applying for and receiving a permit to remove the existing seawall and construct a new one further landward, she took the position that restoration of the original seawall had been lawful, and these proceedings ensued.
CONCLUSIONS OF LAW
Since DER referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).
In proceedings like these brought under Section 403.121(2), Florida Statutes (1991), DER has the burden to prove violations it alleges. Except for projects exempt under Rule 17-312.050, Florida Administrative Code, no dredging or filling may be undertaken in the waters of the state without a permit from DER. Section 403.918, Florida Statutes (1991). All water pollution sources must have permits. Section 403.087(1), Florida Statutes (1991). Failure to obtain a required permit is prohibited. Section 403.161(1)(b), Florida Statutes (1991).
At issue is whether respondent needed a (second) DER construction permit before restoring or replacing the seawall built along the original high water line as it existed before the property eroded; or whether the exemption set out in Rule 17-312.050(1)(j), Florida Administrative Code, made another permit unnecessary. DER has the burden to prove the unavailability of the exemption. The rule provides:
(j) The restoration of a seawall or riprap at its previous location or upland of or within one foot waterward of its previous location. No filling can be performed except in the actual restoration of the seawall or riprap. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. Restoration and repair shall be performed using the criteria set forth in Section 403.918(5), F.S. This exemption shall be limited to functioning seawalls or riprap where there is no exchange of waters through or around the seawall or riprap of sufficient quantity, duration or frequency so that the
restoration of the seawall or riprap could cause or contribute to a violation of state water quality standards or other criteria listed in Section 403.918, F.S. This exemption does not constitute an exception from the permitting requirements of Chapter 161, F.S.
Rule 17-312.050(1), Florida Administrative Code. Because the exemption is "limited to functioning seawalls," it was held not to authorize restoration of an abandoned seawall that "had not been functioning `for years.'" State of Florida, Department of Environmental Regulation v. Dennis Black, No. 87-4169 (DER; August 9, 1988). While only months, not years, elapsed here, significant erosion occurred nevertheless.
In order to be eligible for the exemption provided in Rule 17- 312.050(1)(j), Florida Administrative Code, a seawall must, once restored, function to preclude "exchange of waters through or around the seawall" that would otherwise cause or contribute to violations of water quality standards. Photographs in evidence strongly suggest an exchange between water landward of the seawall and the rest of Choctawhatchee Bay.
But DER did not demonstrate that the rebuilt seawall (as opposed to fill not yet placed landward of the seawall, which might smother "resources in the benthic substra[ta] that exist in the shallow l[it]toral zone," T. 136, thereby affecting water quality adversely,) would cause or contribute to pollution of the Bay, and render restoration of the seawall ineligible for exemption, on that account.
The rule specifically addresses instances in which "private and public ownership boundaries have changed as a result of natural occurrences." Rule 17- 312.050(1)(j), Florida Administrative Code. When the mean high water line shifts landward, the rule requires that the private property owner obtain the "necessary title or leasehold interest," before beginning construction authorized by the exemption. Waterward of the mean high water line, the bottom of Choctawhatchee Bay is public land, while uplands belong to riparian owners.
If the Department of Natural Resources (DNR) had conveyed the land between the seawall and the new mean high water line to Ms. McSheehy before restoration started, she would have been entitled to the exemption provided by Rule 17-312.050(1)(j), Florida Administrative Code, as far as the record in the present case shows. In fact, although she represented that she had "been assured by Gary Bishop, DNR official, that [she] will get [a] deed," Respondent's Proposal for the Ruling of the Hearing Officer, Ms. McSheehy failed to obtain title (or a lease) from the Board of Trustees of The Internal Improvement Fund before work began.
Respondent is in violation for proceeding with the work without a deed or lease from DNR. Filling landward of the seawall requires, moreover, both DNR's acquiescence and a DER permit. But, if DNR has already decided to convey to Ms. McSheehy the submerged property landward of her seawall (albeit after restoration), no good purpose would be served in ordering her to remove the seawall and forgo the opportunity to apply for a DER permit to do any additional filling.
It is, accordingly, RECOMMENDED:
That DER make final its proposed orders for corrective action, unless within a reasonable time DNR conveys or leases to respondent the property lying between the seawall and the mean high water line.
DONE AND ENTERED this 24th day of February, 1993, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1993.
APPENDIX TO RECOMMENDED ORDER CASE NO. 91-7281
Petitioner's proposed findings of fact numbers 2, 3, 5, 6 and 12 have been adopted, in substance, insofar as material.
With regard to petitioner's proposed finding of fact number 1, the permit issued in 1986, but it is not clear that construction was accomplished in 1986.
With regard to petitioner's proposed finding of fact number 4, the seawall failed sometime between the summer of 1989 and the spring of 1990.
With regard to petitioner's proposed findings of fact numbers 7, 8, 9, 10 and 11, use of the word "unauthorized" renders these proposed conclusions of law.
Respondent's "proposal for the ruling of the hearing officer" did not contain separately numbered proposed findings of fact.
COPIES FURNISHED TO:
Virginia B. Wetherell, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Richard L. Windsor, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Elizabeth R. McSheehy
516 Mooney Road
Fort Walton Beach, Florida 32547
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Petitioner,
DOAH Case No. 91-7281
vs. OGC Case No. 91-1708
ELIZABETH MCSHEEHY,
Respondent.
/
FINAL ORDER
On February 24, 1993, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Regulation ("Department") and to Respondent, Elizabeth McSheehy. A copy of the Recommended Order is attached as Exhibit A. On March 5, 1993, the Department filed exceptions to the Recommended Order. The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
This is an administrative enforcement case arising out of Respondent's construction, in waters of the state, of a seawall to replace a previously existing seawall that was destroyed by winter and spring storms of 1989-90. The relevant facts are not in dispute.
Sometime prior to December 30, 1987, Respondent completed construction of a seawall along the shoreline of property she owned fronting Choctawhatchee Bay.
The construction was undertaken pursuant to a valid permit issued by the Department on June 26, 1986, with an expiration date of December 30, 1987. That seawall remained in place until winter and spring storms of 1989 and 1990 demolished it, leaving behind only the twisted pilings known as "dead men" and a small intact portion at the eastern end. Additionally, approximately 30 feet of shoreline was ultimately lost as a result of erosion. A similar fate befell other properties in the area, but Respondent's property, being located on a point, was hit especially hard by the force of the storms. Not being a resident on the property, Respondent was unaware of the damage the storm had caused to her property until she received a letter from an adjoining landowner dated June 6, 1990, (DER Exhibit 2) advising her that her seawall had been demolished and that her property was now eroding at a rapid pace, and requesting that she take action to protect their mutual property line. Respondent subsequently commenced construction of a replacement seawall in approximately the same location as her original seawall.
An inspection of the area by the Department on July 26, 1990 disclosed that the seawall had been rebuilt in its original location, but no additional fill had yet been placed landward of the seawall. The Department issued a warning notice and a request that Respondent conduct no further dredge and fill activities in waters of the state until a current and valid permit had been obtained. Respondent subsequently abstained from further dredge and fill activities, but informal attempts to resolve the issues were unsuccessful 1/ and on September 16, 1991, the Department issued a Notice of Violation and Orders for Corrective Action which, among other things, directed Respondent to remove the seawall and to pay the Department's expenses of investigation in the amount of $245.37. Respondent petitioned for an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the matter was transferred to the Division of Administrative Hearings for assignment of a Hearing Officer.
Following a hearing conducted March 31, 1992, the Hearing Officer entered his Recommended Order, recommending that the Department make final its proposed orders for corrective action "unless within a reasonable time DNR conveys or leases to respondent the property lying between the seawall and the mean high water line." (Recommended Order at 8) The Hearing Officer concluded, among other things, that the issue presented for determination was whether Respondent needed a construction permit from the Department before undertaking the construction activities in question, or whether the exemption set forth in Rule 17-312.050(1)(j), F.A.C, was applicable, thus making another permit unnecessary. That exemption is an exemption from the requirement to obtain a Department permit (but not from the requirement to meet state water quality standards and other specified requirements) for
(j) The restoration of a seawall or
riprap at its previous location or upland of or within one foot waterward of its previous location. No filling can be performed except
in the actual restoration of the seawall or riprap. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. Restoration and repair shall be performed using the criteria set forth in Section 403.918(5), F.S. This exemption shall be limited to functioning seawalls or riprap where there is no exchange of waters through or around the seawall or riprap of sufficient quantity, duration or frequency so that the restoration of the seawall or riprap could cause or contribute to a violation of state water quality standards or other criteria listed in Section 403.918, F.S. This exemption does not constitute an exception from the permitting requirements of Chapter 161, F.S.
The Hearing Officer also concluded that the Department had the burden of proving the unavailability of the exemption, that part of this burden would require the Department to demonstrate that the rebuilt seawall would cause or contribute to pollution of the bay, and that the Department had failed to meet this part of its burden. (Recommended Order at 5-6) Noting that the exemption expressly required Respondent to obtain the "necessary title or leasehold interest" before beginning construction authorized by the exemption, the Hearing Officer further concluded that if Respondent had obtained the necessary conveyance from the Department of Natural Resources (DNR) 2/ before commencing construction, she would have been entitled to the exemption. (Recommended Order at 7)
Finally, the Hearing Officer concluded that further filling in waters of the state landward of the seawall requires a Department permit as well as DNR's acquiescence. However, if DNR were to convey to Respondent within some unspecified time frame the submerged property landward of her seawall, "no good purpose would be served in ordering her to remove the seawall and forgo the opportunity to apply for a DER permit to do any additional filling." (Recommended Order at 7-8)
The principal issues raised by the Department's exceptions are whether Respondent was entitled to the exemption provided in Rule 17-312.050(1)(j), F.A.C., and whether, as a matter of law, the Department is required as part of its enforcement case to carry the burden of proving the unavailability of the exemption to Respondent, rather than Respondent being required to meet the burden of proving the availability of the exemption as a defense to the violations alleged in the Notice of Violation.
RULINGS ON EXCEPTIONS
In its first exception, the Department takes issue with the Hearing Officer's finding, in finding of fact No. 8, that "apparently before anybody from DER communicated with Ms. McSheehy, the seawall was rebuilt in its original location." The Department contends that this finding is inconsistent with uncontroverted evidence that Respondent and her family stopped work on the
seawall construction as soon as they were contacted and asked to stop by Department representatives.
The evidence makes clear that no further construction activity occurred subsequent to the Department's "stop-work" request, but it also makes clear that the seawall itself, as distinguished from the fill that would be placed in waters of the state landward of the seawall, was substantially complete at that time. In this context, I find no conflict between the evidence and the finding of fact in question. Accordingly, this portion of the Department's first exception is rejected.
In the remainder of its first exception, the Department argues that the exemption provided by Rule 17-312.050(1)(j), F.A.C., does not apply to the facts of this case, that its applicability was not properly at issue in this proceeding, and that the Hearing Officer erred in concluding that the Department had the burden of proving the unavailability of the exemption as part of its enforcement case.
First of all, I find that the applicability of the exemption was properly raised and preserved as an issue in this case. Respondent's original handwritten fro se petition alleged that the replaced seawall is in the same location originally provided in the 1986 permit. The petition also specifically raised the issue of whether a new permit was required: "I have been advised by some that repair work does not require a permit. (??)" (emphasis in original). Furthermore, the transcript of the hearing reflects that the Department's counsel discussed the exemption as part of his opening statement and in response to numerous questions by the Hearing Officer, and he argued its inapplicability during final argument. (T. 19-30, 151-53) Accordingly, I conclude that the applicability of the exemption, and consequently its availability as a defense to the Department's enforcement proceeding, were properly at issue in this case and I reject this portion of the Department's first exception.
The remainder of the Department's first exception, however, is well taken. First of all, it is clear that the Hearing Officer misconstrued the applicable law in concluding, in recommended conclusion of law No. 12, that the Department has the burden of proving the unavailability of the exemption. Evidently the Hearing Officer considered this to be part of the Department's burden of proving the violations it alleges as part of its enforcement case. While the Department, as the agency bringing the administrative complaint (the Notice of Violation) unquestionably has the burden of proving that Respondent's activities violated applicable law, Trans/Circuits, Inc. v. Florida Department of Environmental Regulation, 6 F.A.L.R. 6725a, 6736 (DER 1984); Rule 17- 103.130(2), F.A.C.; the Department established a prima facie case by going forward with evidence that Respondent had constructed a seawall in waters of the state without a current and valid permit, that the original permit expired in 1987, and that the construction activities in question required a new permit.
See Florida Department of Transportation v. J.W.C. Company Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Florida Department of Health & Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Greenfield Real Estate Investment Corp. v. Merritt, 348 So.2d 1199 (Fla. 3d DCA 1977). The availability of the exemption is clearly a defense which, if proven, would overcome the Department's prima facie case. It is well established that the burden is on the party seeking the benefit of an affirmative defense to prove the availability of that defense. Hough v. Menses, 95 So.2d 410 (Fla. 1957); J.W.C., supra; Thompson v. State, 378 So.2d 859 (Fla. 1st DCA 1979); Balino, supra. Furthermore, it is also well established that a party who seeks to rely on an exemption from statutory requirements enacted to protect the public, as a defense to a case
alleging violation of those requirements, bears the burden of establishing, by competent substantial evidence, facts that clearly demonstrate entitlement to the exemption. See Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla. 1990); Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); Harbor Course Club v. Driscoll Properties, 510 So.2d 915 (Fla. 3d DCA 1987); Pal-Mar Water Management District v. Board of County Commissioners, 384 So.2d 232 (Fla. 4th DCA 1980); Thompson, supra; Sutherland Statutory Construction 47.11 (4th ed. 1984). For these reasons, I find that the Hearing Officer erred in concluding that the Department, as part of its enforcement case, had the burden of proving the nonapplicability of all or any possible statutory or rule exemptions that might constitute a defense to that case.
The remainder of the Department's first exception, as well as its second exception, raise the issue of whether, as a matter of law, the exemption set forth in Rule 17-312.050(1)(j), F.A.C., applies to the essentially undisputed facts of this case. The Department argues that the exception, by its express terms, is limited to functioning seawalls, and Respondent's original seawall had completely ceased to function several months prior to the construction of its replacement. Furthermore, the shoreline had eroded during that period a distance of approximately 30 feet landward from the site of the original seawall so that the unpermitted seawall, at the time work was stopped on it, was standing approximately 30 feet out into waters of the state with the waters of Choctawhatchee Bay on both sides of it. The Department also argues that the Hearing Officer erred by concluding, in recommended conclusion of law No. 13, that the exemption only requires that the seawall, once restored, function to preclude exchange of waters through or around the seawall.
The Department asserts that:
Application of this incorrect conclusion of law would turn the intended meaning of the Rule on its head and substitute a scenario in which one could build seawalls in waters of the state without any necessity for a permit so long as they made a proper watertight job of it. Department's Exceptions at 6.
I conclude that these exceptions by the Department are also well taken. The exemption in question has been construed in previous orders of the
Department and has clearly been limited to the repair or restoration of functioning seawalls. See, e.g., Florida Department of Environmental Regulation
v. Black, 10 F.A.L.R. 5313, 5322 (DER 1988)(exemption is available only if the seawall to be repaired or restored is functioning); Island Developers, Ltd. v. Department of Environmental Regulation, State of Florida, 6 F.A.L.R. 5402, 5404-05 (DER 1984)("The remains of the seawall do not constitute a seawall. Therefore, the exemption is inapplicable."). It was not intended to authorize the placement of significant amounts of fill in waters of the state without benefit of a Department permit in situations where significant erosion has occurred through natural processes over the passage of an extended period of time. One of my predecessors cogently expressed this policy as follows:
I am not unmindful of Petitioner's argument that the term "restoration"
encompasses the rebuilding of a seawall that existed in the past. However, such an interpretation would not be consistent with
the overall objectives of the law creating the exemption, The Florida Environmental Reorganization Act of 1975, Chapter 75-22, Laws of Florida, and Chapters 253 and 403, Florida Statutes. The exemptions as found in those statutes were provided for those activities which would cause minimal environmental harm. No prior evaluation of the environmental consequences of a project or activity qualifying for one of those exemptions is necessary. This is true for the restoration of an existing seawall which separates land and sea. The restoration of a seawall which remains capable of breaking the force of waves and protecting the shore from erosion causes minimal environmental damage.
The forces of the waters may require that such seawalls be replaced or restored from time to time. Nonetheless, to allow a seawall to deteriorate for a number of years to the extent that it no longer prevents erosion and then have it rebuilt results in multiple assaults on the environment. The failure of the seawall to prevent erosion contributes to water quality degradation, and then after the shore has eroded the seawall when reconstructed would require fill behind it causing further and longer term water quality problems. The exemption was intended to provide for the continuance of the seawall as a physical barrier between the water and the shore without the necessity of permitting, thus allowing for the prompt correction of a deteriorating seawall.
Therefore, the Hearing Officer's conclusion that the construction of the seawall is exempt pursuant to Section 403.813(2)(e), Florida Statutes, is rejected.
Island Developers, supra, at 5405.
Finally, although not dispositive of the issue, the Department's representative, Eric Buckelew, testified at the hearing that it was his opinion that the construction activity in question did not constitute repair of a functioning seawall, but rather that it constituted new seawall construction under circumstances that would require a new permit from the Department. (T.
120-22, 131) Respondent's evidence established only that the seawall was functioning prior to its destruction, not at the time of its replacement months later. Thus, regardless of who properly bore the burden of proving the applicability or nonapplicability of the exemption, under the undisputed facts of this case the exemption simply was not available as a matter of law. For these reasons, I accept the Department's second exception and that portion of its first exception which argues that the exemption is inapplicable.
Finally, although not directly raised by the Department's exceptions, an additional issue should be dealt with in regard to the ultimate recommendation
of the Hearing Officer. The Hearing Officer concluded that Respondent was not entitled to the benefit of the exemption, not because the exemption was inapplicable under the facts of this case, but because Respondent failed to comply with the further requirement of the exemption that she obtain from DNR 3/ a conveyance or other acquiescence to the use of the submerged bottomlands landward of the seawall. However, the Hearing Officer apparently recommends that the orders for corrective action not be made final if "within a reasonable time DNR conveys or leases to respondent the property lying between the seawall and the mean high water line." (Recommended Order at 8) The Hearing Officer provides no suggestions or recommendations regarding how I am supposed to receive such an evidentiary showing in these post-hearing proceedings. See Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Friends of Children v. Florida Department of Health and Rehabilitative Services, 504 So.2d
1345 (Fla. 1st DCA 1987)(agency fact finding independent of and supplementary to DOAH proceedings specifically disapproved); Florida Department of Transportation
J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Systems Management Associates, Inc. v. Florida Department of Health & Rehabilitative Services, 391 So.2d 688 (Fla. 1st DCA 1980). In any event, in view of my previous rulings, such a post-hearing conveyance would not change the result in this case even if Respondent were able to obtain it and it were possible for me to consider additional evidence at this stage of the proceedings. While obtaining and proving such conveyance or acquiescence to the use of submerged lands owned by the State of Florida may be required as part of Respondent's demonstration of entitlement to the exemption, it is not a substitute for the statutory requirement that dredge and fill activities may not be conducted in, on, or over surface waters of the state without a permit from the Department unless exempted by statute or Department rule. Section 403.913(1), Florida Statutes. Accordingly, the Hearing Officer's recommendation is modified to remove the phrase "unless within a reasonable time DNR conveys or leases to Respondent the property lying between the seawall and the mean high water line" from the recommendation that the Department make final its proposed orders for corrective action.
Accordingly, it is ORDERED THAT:
The Recommended Order of the Hearing Officer is adopted as modified herein and is incorporated herein by reference.
Respondent, Elizabeth McSheehy, shall implement the following corrective actions, which were set forth in the Department's Notice of Violation and Orders for Corrective Action issued September 16, 1991:
Respondent shall immediately cease and desist from further dredging and/or filling within the waters of the State as defined in Section 403.031, Florida Statutes, and Florida Administrative Code Rule 17-312.150, without or until receiving the necessary permit from the Department or notice that the proposed activity is exempt from the permitting requirements of the Department.
Within 30 days of the effective date of this Final Order, Respondent shall remove the bulkhead which is the subject of this proceeding from Choctawhatchee Bay. Respondent shall contact the Department when this has been accomplished.
Respondent shall take those precautions necessary to prevent further damage to the environment during performance of the above described restoration
including but not limited to the installation of turbidity control devices during performance of the restoration.
Within 30 days of the effective date of this Final Order, Respondent shall reimburse the Department for expenses incurred in investigating the violation in the sum of $245.37. Payment shall be made by certified check, cashier's check or money order submitted to the Northwest District Office, 160 Governmental Center, Pensacola, Florida 32501-5794.
Respondent shall allow authorized representatives of the Department access to the property at reasonable times for purposes of determining compliance with this Final Order and the rules and regulations of the Department.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 25th day of May, 1993, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
ENDNOTES
1/ Respondent initially agreed to remove the seawall and applied, through an agent, for a permit to relocate the seawall landward. That permit was issued in November of 1990 and authorized construction of a new seawall along the shoreline. However, after receiving several extensions of time to remove the existing seawall, Respondent opted to pursue these proceedings instead.
2/ Such acquiescence or conveyance, if required, would come from the Board of Trustees of the Internal Improvement Fund. See Chapter 253, Florida Statutes.
3/ See n. 2, supra.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to:
Elizabeth R. McSheehy
516 Mooney Rd
Fort Walton Beach Florida 32547 and by hand delivery to:
Robert T. Benton, II Hearing Officer
Division of Administrative Hearings
The DeSoto Bldg 1230 Apalachee Pkwy
Tallahassee Florida 32399-1550
Gary Bishop
Department of Natural Resources 3900 Commonwealth Blvd
Tallahassee Florida 32399-3000
Ann Cole, Clerk
Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Pkwy
Tallahassee FL 32399-1550
Richard Windsor, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Rd
Tallahassee Florida 32399-2400 on this 25th day of May, 1993.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| May 26, 1993 | Final Order filed. |
| Mar. 29, 1993 | Letter to RTB from Elizabeth McSheehy (re: Hearing Officer`s Ruling) filed. |
| Feb. 24, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held 3/31/92. |
| Feb. 24, 1993 | Order sent out. (request denied) |
| Jun. 01, 1992 | State of Florida Department of Environmental Regulation`s Proposed Recommended Order filed. |
| Jun. 01, 1992 | Proposal filed. (From Elizabeth McSheehy) |
| May 26, 1992 | Order sent out. (request denied) |
| May 08, 1992 | (Administrative Hearing) Transcript (original & copy) ; Notice of Filing filed. |
| May 08, 1992 | State of Florida Department of Environmental Regulation`s Request for Clarification by Hearing Officer filed. |
| May 05, 1992 | Order sent out. (Proposed Recommended Order`s due 5/30/92) |
| May 04, 1992 | (ltr form) Formal Request for Extension of Deadline for Proposed Recommendation filed. (From Elizabeth McSheehy) |
| Apr. 06, 1992 | Photographs filed. (From Elizabeth McSheehy) |
| Feb. 06, 1992 | Amended Notice of Hearing sent out. (hearing set for March 31, 1992; 10:00am; Mary Esther). |
| Feb. 03, 1992 | Letter to RTB from Elizabeth McSheehy (re: hearing date) filed. |
| Jan. 02, 1992 | Amended Notice of Hearing (as to location only) sent out. (hearing set for March 13, 1992; 10:00am; Ft Walton Beach). |
| Dec. 11, 1991 | Ltr. to RTB from Elizabeth R. McSheehy re: Reply to Initial Order filed. |
| Dec. 10, 1991 | Order sent out. (hearing set for March 13, 1992). |
| Dec. 10, 1991 | Notice of Hearing sent out. (hearing set for March 13, 1992; 10:00am; Ft Walton Beach). |
| Dec. 06, 1991 | Department of Environmental Regulation`s Response to Initial Order filed. |
| Nov. 18, 1991 | Initial Order issued. |
| Nov. 13, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Notice of Violation and Orders for Corrective Action; Request for Formal Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 25, 1993 | Agency Final Order | |
| Feb. 24, 1993 | Recommended Order | Seawall failed and beach eroded. Rebuilding along prior Mean High Water line without permit and DNR approval was violation but DER should await DNR's decision. |
