STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF NATURAL RESOURCES, )
)
Petitioner, )
)
vs. ) CASE NO. 92-2292
) G & R BUILDERS OF DISTINCTION, ) INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, held a formal administrative hearing on August 19, 1992, in Sarasota, Floride.
APPEARANCES
For Petitioner: Lanette M. Price, Esquire
Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
MS-35 Douglas Building Tallahassee, Florida 32399-3000
For Respondent: Garry Battaglia, Qualified Representative G & R Builders of Distinction, Inc.
107 Corporation Way, Suite B Venice, Florida 34292
STATEMENT OF THE ISSUES
Whether the construction activities undertaken by Respondent at the home of George Scantland which lies seaward of the Sarasota County Coastal Construction Control Line constitute a violation of Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, and, if so, should an administrative fine be assessed against the Respondent.
PRELIMINARY STATEMENT
On July 24, 1991, the Department of Natural Resources (Department), through its Division of Beaches and Shores, issued a Notice Of Intent To Issue Agency Final Action to Respondent. The notice advised Respondent that the final agency action was based on a violation discussed in the issuance of an after-the-fact construction permit wherein the Department had advised the Respondent that the assessment of an administrative fine for such violation would be addressed by the Department in a separate agency action. On January 27, 1992, Respondent filed a Petition For Formal Hearing. The matter was referred to the Division of Administrative Hearings on April 7, 1992, for assignment of a Hearing Officer
and conduct of a hearing. A Hearing Officer was assigned and a hearing in this matter was scheduled for August 19, 1992, in Sarasota, Florida.
At the hearing, the Department presented the testimony of Stephen M. West, Ong-In Shin and James Martinello. The Department's exhibits 1, 2A-2C, 3-6, 7A, 7B, 8-9, 10A-10C, 11, 12A-12C and 13-25 were received as evidence in this case. Sections 161.053(12) and 161.054, Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, were officially recognized.
Garry Battaglia, business manager for G & R Builder of Distinction, Inc., was accepted as a qualified representative. Garry Battaglia testified on behalf of Respondent but did not present any documentary evidence. The ore tenus motion to dismiss made by Respondent was denied.
A transcript of this proceeding was filed with the Division of Administrative Hearings on September 14, 1992. The Department timely filed its proposed findings of fact and conclusions of law. The Respondent filed a response to the Department's proposed findings of fact and conclusions of law but has not filed any proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the Department has been made or reflected in an appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made.
George Scantland owns a single-family home on Casey Key in Sarasota County, Florida, which lies seaward of the Sarasota County Coastal Construction Control Line ("CCCL").
Scantland contracted with the Respondent to perform certain construction activities at his home. At the time Respondent entered into the contract, Garry Battaglia was President of the Respondent corporation.
On February 13, 1990, the Respondent requested a consultation from the Department regarding the proposed construction activities at Scantland's home.
The Respondent submitted a plan of the proposed construction along with the consultation request.
At the time of the consultation request, Scantland's single-family home consisted of an on-grade slab on the ground floor level and an elevated second floor with a wooden cantilevered deck on the north and south sides of the property.
The consultation request and plan indicate that the Respondent wished to construct a third-story addition including a cupola above the existing second floor, an elevator within the existing wall on the south side of the home, and an enclosure for stairs outside on the existing south side wall.
On June 4, 1990, a Department engineer responded to the consultation request in a letter notifying the Respondent that the proposed third-story addition, the cupola and the elevator qualified for an exemption. However, construction of the stairwell enclosure did not qualify for an exemption pursuant to Section 161.053(12), Florida Statutes, because the enclosure modified the existing structure outside the limits of the existing foundation.
And, pursuant to Rule 16B-33.004(4), Florida Administrative Code, a permit was required for the proposed stairwell enclosure because the enclosure constituted an addition to a major structure proposed above a preexisting concrete deck.
On October 18, 1990, the Department's area inspector visited Scantland's home, prepared a site inspection report, and took photographs.
The site inspection report indicates that Respondent was engaged in construction activities at Scantland's home and requested comment from the Department's staff as to whether the work was exempt or required a permit.
The first photograph (Exhibit 2A) taken on October 18, 1990, by the area inspector indicates that the existing concrete deck on the ground floor of the north side of the house had been drilled and rebar had been inserted and that concrete blocks were being placed at the bottom of the drills and rebar locations.
Another photo (Exhibit 2C) taken on October 18, 1990, by the area inspector depicts the southern wall of the house with temporary shorings supporting the remains of the second floor wooden deck located on top of the preexisting concrete deck. The photo shows that wooden posts in the concrete deck, which had supported the second floor elevated wooden deck, had been flush cut to the ground.
After reviewing the site inspection report and photographs, the area engineer in Tallahassee asked the inspector to revisit the site to gather further information regarding Respondent's construction activities.
The area inspector revisited the site on October 24, 1990, and prepared a Warning Notice and Violation Report which he hand-delivered to an employee of the Respondent on the job site. The area inspector also took additional photographs (Exhibits 5A-5C) during this visit.
The Warning Notice was issued for the placement of drilled rebar and block columns atop an existing concrete slab and placement of a tie-beam system atop the block columns.
The Warning Notice put the Respondent (owner's agent) on notice that a violation has possibly occurred and instructed the Respondent to stop construction pending a determination from the Department's Tallahassee office.
The Violation Report, which begins the formal entry into the violation process, was issued to both Scantland and the Respondent for the construction of new perimeter block walls atop an existing ground floor concrete deck seaward of the CCCL without obtaining a permit from the Department.
The area inspector's initial determination that Respondent's construction activities constituted a statutory violation was confirmed by the Department's engineering staff in Tallahassee.
The photographs (Ex. 5A - 5C) taken by the area inspector on October 24, 1990 demonstrate that even after receipt of the Warning Notice, the Respondent continued construction at Scantland's home.
The first photograph (Ex. 5A) taken from the north side of the house, shows that placement of the rebar and columns had been completed and a beam had been constructed across and underneath the existing wooden deck on the second floor.
A second photograph (Ex. 5B) taken from the south side of the house, shows the new columns and new tie-beams constructed atop the preexisting concrete deck.
On November 16, 1990, the area inspector conducted a follow-up inspection of the site, prepared a site inspection report, and took photographs (Ex. 7A -7B).
The site inspection report confirms that Respondent was still engaged in construction activities at the site. The report indicates that the area inspector spoke with Garry Battaglia on the site and that Battaglia planned to continue construction until a stop work order was received. Battaglia advised the area inspector at this time that he was applying for a permit for the work.
The first photograph (Ex. 7A) taken by the area inspector on November 16, 1990 is an exterior view of the south side of the house which shows that the wall atop the preexisting concrete deck on the southern addition was completed.
The second photograph (Ex. 7B) shows the interior of the southern wall where construction of the second story was taking place over the new column wall and tie-beam system built atop the preexisting concrete deck.
The Respondent received a copy of a Notice of Apparent Violation of Section 161.053(2), Florida Statutes, dated November 20, 1990, issued by the Department to Scantland for unauthorized construction/excavation seaward of the Sarasota County CCCL. The Notice advised the parties to stop construction activities pending compliance with the law.
On December 10, 1990, the Department received an after-the-fact permit application, plan of construction, and survey of the property from the Respondent as agent for Scantland.
The plan of construction accurately depicts the structure which is currently on the property, as modified by the Respondent.
The completed construction is totally different from the construction activities described in Respondent's consultation request of February 13, 1990.
The consultation request submitted to the Department by Respondent in February, 1990 did not indicate that any construction would occur on the north or west side of the structure above the preexisting concrete deck or that the elevator would be constructed on the southwest corner of the home outside the existing wall or that an enlarged garage/storage area would be constructed. All of the above were ultimately constructed by Respondent.
The survey of the property, dated March 23, 1990, shows that there was preexisting concrete deck on the ground floor level and a wooden deck on the second floor and that the concrete deck was a separate entity from the strip footing supporting the preexisting structure and that there was no enclosed space above the preexisting concrete deck.
On December 19, 1990 the area inspector returned to the site and took additional photographs (Ex. 10A - 10C) and filed a site inspection report. The Respondent continued to engage in construction on the house even after receipt of the Warning Notice and Notice of Apparent Violation. The construction on the south and west sides of the house were never completed, there was a new corridor wall between the elevator shaft and the interior wall of the house, a new column and some new slabs on the ground outside the preexisting foundation of the house.
On January 2, 1991, in response to the after-the-fact permit application, plan and survey filed by the Respondent, the Department staff advised the Respondent by letter that the application was incomplete and told the Respondent to stop any further construction activities on the site that had been identified as requiring a Department permit.
On January 10, 1991, the Department received from Respondent another plan of the existing structure entitled "Existing First Floor Drawing" drawn on October 25, 1990. The drawing indicates that there was open lattice on the south side of the house; and, the drawing refers to the concrete on the north and south sides of the home as "concrete walk".
On January 17, 1991, the area inspector visited the site again, took additional photographs (Ex. 12A -12C) and filed a site inspection report. Again, it was evident that Respondent continued construction on the house despite receipt of the Department's notice of January 2, 1991 advising Respondent to cease any further construction activities.
The Respondent received a Notice of Violation, Cease and Desist Order issued by the Department on January 17, 1991 for unauthorized construction seaward of the CCCL.
On July 22, 1991, the Department issued Permit No. ST-807 ATF CF to the Respondent as agent for Scantland, authorizing the after-the-fact activities and the proposed minor structures with the condition that the violation would be addressed by the Department through a separate agency action.
The generally-accepted definition of "foundation" states that a foundation is the support part of a structure and is restricted to the structural member that transmits the superstructure load to the earth.
The strip footing, or wall footing, directly beneath Scantland's home transmits the load of the superstructure to the ground and thus constitutes the foundation of the preexisting structure.
The footings on the north and south sides of the home underneath the concrete deck did not support the preexisting structure but rather only supported the preexisting second story wooden deck. As such, the footings below the concrete deck did not constitute part of the foundation of the preexisting structure.
The construction at Scantland's home constitutes construction outside the foundation of the Scantland's home and additions to the Scantland's home above the preexisting concrete deck.
Respondent knew, or should have known, that a construction permit was required for the construction activities at the Scantland home based on the Department's response to the consultation request.
Respondent's continued construction activities at the Scantland home constitutes a violation of the statutes and rules and was intentional in that the Respondent continued the construction activities at the Scantland home despite the repeated notices and warnings by the Department to cease construction until the matter was resolved.
The Respondent was agent for Scantland and responsible for obtaining all necessary permits.
The construction activities conducted at the Scantland home by the Respondent does not come within the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B-33.004(4), Florida Administrative Code, adopted in accordance with the Department's statutory authority. Therefore, the construction was a violation of the statute and Department rule in that Respondent failed to obtain a permit before beginning construction. And, such violation could subject the Respondent, as the owner's agent responsible for obtaining the permit, to a possible assessment of an administrative fine pursuant to Section 161.054, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Department is the state agency responsible for reviewing and approving any excavation or construction activities along the State of Florida's coastline, and whose regulatory jurisdiction extends seaward of the CCCL which has been established in Sarasota County.
Section 161.053(12), Florida Statutes provides for an exemption under certain circumstances to the general prohibitions to any construction beyond the CCCL and provides that, in order for the exemption to apply, the modification, maintenance or repair of the existing structure must be within the limits of the existing foundation; and not require, involve, or include any additions to, or repair or modification of, the existing foundation of the existing structure. Specifically excluded from this exemption are any addition or enclosure added, constructed, or installed below the lower deck of an existing structure.
In furtherance of its statutory responsibility, the Department adopted Rule 16B-33.004(4), Florida Administrative Code., which considers major structures and additions to major structures above existing patio slabs, decks or similar unenclosed areas as new structures separate and independent of the existing patio slabs, decks, or other unenclosed areas; and therefore, not entitled to the exemption which would require such construction to comply with the regulatory requirements of Chapter 16B-33, Florida Administrative Code.
The burden was upon the Respondent to show its entitlement to the exemption provided for in Section 161.053(12), Florida Statutes, and Rule 16B- 33.004(4), Florida Administrative Code. The evidence is clear that Respondent has failed to show its entitlement to the exemption. Furthermore, the evidence is clear that the Respondent, acting as the agent for Scantland, after being put on notice, intentionally and willfully failed to comply with the provisions of Section 161.053 and rules adopted by the Department. Therefore, the Respondent, as agent for Scantland, should be assessed an administrative fine in accordance with Section 161.054(1) and (4), Florida Statutes.
Having considered the foregoing Findings of Fact and Conclusions of Law, it is, accordingly,
RECOMMENDED:
That the Department enter a final order assessing an administrative fine in the amount of One Thousand Five Hundred and No/100 Dollars ($1,500.00) against Respondent. In making this recommendation, I am mindful of Respondent's repeated failure to comply with the repeated notices and warnings without any attempts to resolve the matter. Another basis for the fine is to ensure immediate and continuous compliance in the future as set forth in Section 161.054(4), Florida Statutes.
DONE AND ENTERED this 28th day of October, 1992 in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
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 28th day of October, 1992.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2292
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Petitioner in this case.
Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner
The following proposed findings of fact are adopted as modified in substance in the Recommended Order. The number(s) in parenthesis is the Finding of Fact which so adopts the preceding proposed finding(s) of fact: 1-9(1-9 respectively): 10(10-11); 11(12); 12(13); 13(13, 14); 14(15); 15(16); 16(17); 17(18-20); 18(21); 19(22); 20(23-24); 21(25); 22(26); 23(27); 24(28-29); 25 (30); 26-28(31); 29(32); 30(33); 31-33(34); 34(35); 35(36); 37(37); 38(38-39); 39(40); and 40-42(41-44).
The Department's proposed finding of fact 36 is covered in the Preliminary Statement.
The Respondent did not file any proposed findings of fact.
COPIES FURNISHED:
Lanette M. Price, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399
Garry Battaglia, Qualified Representative G & R builders of Distinction, Inc.
107 Corporation Way, Suite B Venice, Florida 34292
Virginia B. Wetherell Executive Director
Department of Natural Resources 3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, Florida 32399-3000
Kenneth Plante General Counsel
3900 Commonwealth Boulevard
Mail Station #10
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF NATURAL RESOURCES WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF NATURAL RESOURCES CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.
| Issue Date | Proceedings |
|---|---|
| Dec. 07, 1992 | cc: Letter to R. Uzell from L. Price (re: proposed final order) filed. |
| Nov. 30, 1992 | (Letter form) Request for an Extension Time filed. (From Ray Uzell) |
| Oct. 28, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 8-19-92. |
| Oct. 27, 1992 | Amended Order Correcting Style Of Case sent out. (motion for official recognition is granted; motion to correct case style is granted) |
| Oct. 21, 1992 | (Respondent) Statement of the Issues/Findings of Fact w/Exhibit filed. |
| Sep. 24, 1992 | Petitioner Department of Natural Resources' Proposed Recommended Order filed. |
| Sep. 14, 1992 | Transcript filed. |
| Aug. 26, 1992 | Order sent out. (motion for official recognition and motion to correct style of case is granted) |
| Aug. 19, 1992 | CASE STATUS: Hearing Held. |
| Aug. 13, 1992 | CC Notice of Intent to Issue Agency Final Order filed. |
| Aug. 13, 1992 | (Respondent) Motion to Correct Case Style filed. |
| Jul. 28, 1992 | (Respondent) Motion for Official Recognition filed. |
| Jul. 20, 1992 | (Respondent) Notice of Production From Non-Party w/Subpoena Duces Tecum Without Deposition filed. |
| May 29, 1992 | (Respondent) Notice of Appearance as Co-Counsel filed. |
| May 21, 1992 | Notice of Hearing sent out. (hearing set for 8-19-92; 9:00am; Sarasota) |
| Apr. 23, 1992 | Joint Response to Initial Order filed. |
| Apr. 23, 1992 | Letter. to WFQ from Garry Battaglia re: Reply to Initial Order filed. |
| Apr. 15, 1992 | Initial Order issued. |
| Apr. 14, 1992 | Notice of Intent to Issue Agency Final Order; Administratively Approved Permit For Construction or Other Activities Pursuant to Section 161.053, Florida Statutes Final Order filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 28, 1992 | Recommended Order | Failure to show entitlement to exemption G&R's construction activites required permit and was violation which required the assessment of admininstrative fine. |
