sada bald ae “alted gierg00'd 3 IN RE: On the Systems, cons! grading, cleari seaward of the benefit of a pe recommendatic Findings of Fa lL OC for the propos control line or Environmental Florida (Prope! pennit was iss. the Notice to construction ac the project site 2. € project, submi Department is accepted Mr. \ 1.5. 3 OT Department he permit conditio QO-117 L ‘) aezevesose STATE OF FLORIDA ADMIMISTRATIV JEPARTMENT OF ENVIRONMENTAL PROTECTIONE A?2)NGS Assessment of an administrative fine to Ben Withers, Ben Withers, Inc., in conjunction with an approval of an after-the-fact coastal construction control line permit to Leonard Pepper in Franklin County: Files FR-563 (Amend) Ml ATF and OGC File # 01-1863. FINAL ORDER xt date shown below, the Director of the Office of Beaches and Coastal ved the files regarding Ben Withers, Ben Withers, Inc., for unauthorized and excavation for the purposes of constructing a roadway and driveway astal construction control line on property owned by Leonard Pepper without it from the Department of Environmental Protection. After considering the of staff, the Department of Environmental Protection adopts the following nd Conclusions of Law. ; ~Findings of Fact- Detober 20, 1999, the Departnient issued permit FR-563 to Leonard Pepper, construction of a single-family dwelling seaward of the coastal construction ‘operty located approximately 300 feet to 485 feet east of Department of otection reference monument R-150, on Dog Island, in Franklin County, . On October 13, 2000, the Department issued permit FR-563 (Amend). The as a Notice to Proceed Withheld. Among the items requested for issuance of oceed, special permit condition number 1.5 required the submittal of a 's plan showing the route and timing for bringing equipment and materials to order to minimize impacts to the beach and dune system. March 15, 2001, Ben Withers, Ben Withers, Inc., the contractor for the { a construction access plan to the Department. On April 11, 2001, the d the Notice to Proceed for permit FR-563 (Amend). The Department hers’ construction access plan as satisfying special permit condition number to concerns and confusion regarding the access plan, on April 24, 2001, the a meeting in Apalachicola, Florida, to discuss the Department’s permit, the and the accepted construction access plan. Department staff met with Mr. EXHIBIT NOI LONYLSNG TRLIA NAg-wory = Wdges2, 100%-01-98g fs ed ad eae ie ae ibe bed = 010/800'd é FILE NAME: | FILE NUMBE Page 2 Withers and | Commission, 1 and Florida Po 4 . accepted the ¢ construction a ‘specifically aut 5. C¢ unauthorized g driveway seaw the permit and 6. £ Inc., that the Statutes, the p cease such aci Violation/Ceas facsimile mess 7 6¢ Systems. Mr. Department w Department st used in the coi ete., along th driveway seaw & | responded to Yonclas stated plans and conc the Departmer the house site. ; 9 | The letter advi L sez2pescgs yper/Ben Withers, Inc. : FR-563 (Amend) M1 ATF attorney, the U. S. Fish & Wildlife Service, Florida Fish & Wildlife Nature Conservaticy, Franklin County, the DEP Tallahassee District Office, ¢ Corporation. In addition, several Dog Island residents attended. artment staff advised the attendees of the meeting that the Department had 1. Staff also advised that neither the permit or staff's acceptance of the ss plan authorized any additional excavation other than that which was ‘ized within the footprint of the proposed dwelling. May 7, 2001, a staff inspection of the subject Property revealed the ing, clearing, and excavation for the purposes of constructing a roadway and | of the coastal construction control line, which was not in accordance with groved plans. etter dated May 8, 2001, the Department notified Ben Withers, Ben Withers, tivities on the Property were in violation of Section 161.053(2), Florida 2it and the approved plans, and ordered Ben Withers, Ben Withers, Inc., to ties pending compliance with the law. The Department’s Notice of Permit and Desist Order was received by Ben Withers, Ben Withers, Inc., via :on May 9, 2001. May 9, 2001, Ben Withers visited the Office of Beaches and . Coastal ‘ithers denied violating the permit. He stated that he had provided the an access plan and that he had followed the route shown on the plan. advised Mr. Withers that while the Department had accepted the path to be ‘uction access plan, the Department in no way approved excavation, grading, ecess route and that the permit had not approved the construction of the | of the control line. ; Lo fetter dated May 14, 2001, Nicholas Yonclas, attorney for Ben Withers, : Department's Notice of Permit Violation/Cease and Desist Order. Mr. at all of the work was in accordance with the project description, approved ons of the permit. He stated that the construction access plan was approved by ind showed the 30-foot dccess easement and 12-foot wide driveway leading to fetter dated June 6, 2001, the Department responded to Mr. Yonclas” letter. | that neither the permit nor the construction access plan authorized or NOILOAULSNOy sUBHLIA N3@-WOly — wegy:Z] 1002-01-98¢ “ogee a Zed 010/200'd FILE NAME: FILE NUMBI Page 3 allowed for e letter rerninde Department hi gain access t excavation, ot 10, ( from Jeffrey \ tl. from Nichola Department is an Amended 1 12. | application to Department o1 13.03 the Cease and May 8, 2000. (Amend), cou 14. | administrative letter dated S: hearing on be. 15. FR-563 (Ame 1. : excavation foi ) “Ll Se.evssoge NOLLONGLSNOD SUSHLIA N3B-Wory = WdgH?2{ 1002-91-98 pper/Withers i: FR-563 (Amend) Mi ATF vation, clearing and/or grading activities seaward of the contro! line. The Ar. Yonclas that during the meeting in Apalachicola in April, 2001, that the advised Mr. Withers that the access plan had provided an access, or means to he Property. The permit and the plan did not authorize any additional than that specifically authorized by the permit. June 22, 2001, the Department received a request for administrative hearing Pepper, on behalf of the owner of the subject Property, Leonard Pepper. June 28, 2001, the Department received a request for administrative hearing onclas, on behalf of Ben Withers, Ben Withers, Inc. On July 23, 2001, the dan Order Dismissing the Petition with Leave to Amend. On July 27, 2001, tion was received from Mr. Yonclas. : June 29, 2001, Ben Withers, Ben Withers, Inc., submitted an after-the-fact xdify permit FR-563 (Amend). The application was deemed complete by the ugust 23, 2001. letter dated September 19, 2001, the Department advised Mr. Withers that asist portion of the Notice of Permit Violation/Cease and Desist Order dated ad been lifted and that the authorized work in the original permit, FR-563 sommence. . letter dated September 24, 2001, Nicholas Yonclas withdrew the petition for saring on behalf of Ben Withers, Ben Withers, Inc., without prejudice. By amber 26, 2001, Jeffrey W. Pepper withdrew the petition for administrative fof Leonard Pepper, without prejudice. October 31, 2001, the Department administratively approved permit number ‘Mi ATF. -Conelusions of Law- 1 Withers, Ben Withers, Inc., initiated the unauthorized grading. clearing and e purposes of constructing a roadway and driveway seaward of the coastal ger or vw oe led — 010/800'd FILE NAME: FILE NUMBE Page 4 construction cc the project des: 2. #-P refusing to co Florida Statute fine for each o Department. F offense. 3. F willfully cond fined up to $: potential for 2 control line an who has const known that an seaward of the by Department in the permit. 1 the control line 4, t the Secretary ¢ 21, 2001. Based u fine in the am Withers, Inc., Administrative within twenty+ Administrative Attention: Jim Station 300. ] should be mac should include number 01-181 Ll , —Sb22regogs NOVLONULSN = MEHLIM N3G-WO4y = Wg s2 | 1002-0 1~28g 2pet/Withers : FR-563 (Amend) M1 ATF ‘ol line without benefit of a Department permit and not in accordance with xtion, approved plans and conditions of Department permit FR-563 (Amend). uant to Section 161.054, Florida Stantes, any person or agent of any person ly with or willfully violating any of the provisions of Section 161.053, or any rule or order prescribed by the Department thereunder, shall incur a nse in any amount up to $10,000 to be fixed, imposed and collected by the aday during any portion of which such violation occurs constitutes a separate uant to Rule 62B-54.002(1), Florida Administrative Code, violations that are ‘d and that do not have a significant potential for adverse impact may be 30. Assessments are based upon precedent, the nature of the violation, srse impact, prior knowledge of the existence of the coastal construction he intent of the violator. Ben Withers, Ben Withers, Inc., as a contractor ted numerous projects seaward of the control line, knew or should have jitional Department permit was required for the activity that was performed astal construction control line. Ben Withers, Ben Withers, Inc., was advised Sf that no additional excavation was authorized beyond what was allowed for addition, the permit did not authorize the placement of a driveway seaward of action is taken pursuant to Administrative Directive DEP 100, approved by he Department on November 30, 2000, and DEP Directive 137 dated June 1 the foregoing Findings of Fact and Conclusions of Law, an administrative at of five hundred ($500) dollars is hereby assessed to Ben Withers, Ben provided for in Section 161.054, Florida Statutes, and Rule 62B-54, Florida nde. Payment to the Department of Environmental Protection is required (21) days of your receipt of this Final Order. Your check should be sent to: nforcement Section, Ecosystems Management and Restoration Trust Fund, rtinello, 3900 Commonwealth Boulevard, Tallahassee, Florida, 32399, Mail order to ensure that payment is j properly credited to you, your check aayable to the Ecosystem Management and Restoration Trust Fund and ference to violation file number FR-563 (Amend) Mi ATF and OGC file RRR “REI ee me Zed 010/800'd i FILE NAME: | FILE NUMBE Page 5 Pursuar shall create a Department as All per Pursuant to Sex ‘hearing. The P at the Departr Tallahassee, F copy of the Px Coastal Systen twenty-one (2] hearing pursua The Pe (a) The name, file number ar of how and w: each petitione! material facts warrant revers petitioner contends requi sought by peti respect to the } If a Pe action. » Accox by it in this Nr Department w. to the proceed (received) wit Counsel at the frame constitu 120.569 and | subsequent int pursuant to Ru \ y } L gezpeeose /Withers : FR-563 (Amend) M1) ATF 9 Section 161.054, Florida Statutes, failure to pay the fine imposed herein 1 upon the real and personal property of the violator, enforceable by the statutory liens under Chapter 85, Florida States. s whose substantial interests are affected by this Final Order have a right, tis 120.569 and 120.57, Florida Statutes, to petition for an administrative jon must contain the information set forth below and must be filed (received) it's Office of General Counsel, 3900 Commonwealth Boulevard, MS-35, da 32399-3000, within twenty-one (21) days of receipt of this notice. A on must also be mailed at the time of filing to the Office of Beaches and aamed above at the address indicated. Failure to file a Petition within the lays constitutes a waiver of any right such person has to an administrative © Sections 120.569 and 120.57, Florida Statutes. an shall contain the following information: dress, and telephone number of each petitioner; the Department's violation he county in which the subject matter or activity is located; (b) A statement _each petitioner received notice of the Final Order; (c) A statement of how substantial interests are affected by the Final Order; (d) A statement of the wuted by petitioner, if any; (e) A statement of facts which petitioner contends w modification of the Final Order: (f) A statement of which rules or, statutes reversal or modification of the Final Order; (g) A statement of the relief ier, stating precisely the action petitioner wants the Department to take with al Order. wn is filed, the administrative hearing process is designed to formulate agency gly, the Department's final action may be different from the position taken e. Persons whose substantial interests will be affected by any decision of the regard to the subject Final Order have the right to petition to become a party . The Petition must conform to the requirements specified above and be filed twenty-one (21) days of receipt of this notice in the Office of General ove address of the Department. Failure to petition within the allowed time a waiver of any tight such person has to request a hearing under Sections .57, Florida Statutes, and to participate as a party to this proceeding. Any ention will only be at the approval of the presiding officer upon motion filed 28-106.205, Florida Administrative Code. Wot LofLSioo SUBKLIN N3@-WO4s = Wy 2h 1007-01-98¢ ORE weer or npn ner Foe pre roe ape: ib “Uled olosolo'd 2 FILE NAME: Per FILE NUMBERS: Page 6 A person: petition for an adi may choose to p Statutes, before tl the right to a hear mediation are set Mediation agree that mediat agreement with : and any person ' how the substan: agreement must 3900 Commonw same deadline as The agre! (a) The me (b) The 1 or a pro (c) The < (d) The i introduc (e) The « the first (f) Thet recom 4g) Eith be affe: stateme and inc (h) The As prov mediate will to Statutes, for re parties, the m agreement. Al ease gererseoss {Withers 2-563 (Amend) Mi ATF yse substantial interests are affected by the Final Order may file a timely istrative hearing under Sections 120.569 and 120.57, Florida Statutes, or ue mediation as an alternative remedy under Section 120.573, Florida leadline for filing a Petition. Choosing mediation will not adversely affect if mediation does not result in a settlement. The procedures for pursuing th beiow. ay only take place if the Department and all the parties to the proceeding is appropriate. A person may pursue mediation by reaching a mediation yarties to the proceeding (which include the Respondent, the Department, ) has filed a timely and sufficient petition for a hearing) and by showing interests of each mediating party are affected by the Final Order. The filed in (received by) the Office of General Counsel of the Department at th Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, by the t forth above for the filing of a petition. snt to mediate must include the following: es, addresses, and telephone numbers of any persons who may tion; we, address, and telephone number of the mediator selected by the patties, on for selecting a mediator within a specified time; ed allocation of the costs and fees associated with the mediation; zement of the parties on the confidentiality of discussions and documents during mediation; “ , , time, and place of the first mediation session, or 2 deadline for holding sion, if no mediator has yet been chosen; 1¢ of each party's representative who shall have authority to se d settlement; an explanation of how the substantial interests.of each mediating party will 1 by the action or proposed action addressed in this notice of intent or a slearly identifying the petition for hearing that each party has already filed, rating it by reference; and matures of all parties or their authorized representatives. attend the ttle or din Section 120.573, Florida Statutes, the timely agreement of all parties to he time limitations imposed by Sections 120.569 and 120.57, Florida sting and holding an administrative hearing. Unless otherwise agreed by the ation must be concluded within sixty (60) days of the execution of the NOILOMBASNOD CHBRLIN N¥G-WO1Y — Welyysz4 1 002-01-98q E TET oe de oe vn 7 TOT RE ERR SET WC SR eR EE a ll il, third 800/800'g = 2 FILE NAME: | FILE NUMBE: Page 7 If medi: enter a final o interests will b« petition for a I above, and mu notice. If med: all parties in v 120.57, Florid: specify the dez remedies under Any par pursuant to Se Rules of Appell Department of J Boulevard, MS. of Appeal withi The Notice file Section 35.22(3 Done an Tallahassee, Fic 2 FILING AND 4 FILED, on this $120.52, Florid. designated Depa of.which is here Department Clei " stleveeogs -—WOLLIMAUSWO Vai sea | HSNO “VHA W3geu0y per/Withers FR-563 (Amend) M1 ATF n results in settlement of the administrative dispute, the Department must r incorporating the agreement of the parties. Persons whose substantial ‘fected by such a modified final decision of the Department have a right to ting only in accordance with the requirements for such petitions set forth herefore file their petitions within twenty-one (21) days of teceipt of this an terminates without settlement of the dispute, the Department shall notify ing that the administrative hearing processes under Sections 120.569 and ‘atutes, remain available for disposition of the dispute, and the notice will hes that then will apply for challenging the agency action and electing se two Statutes. ‘o this Final Order has the right to seek judicial review of this final order, n 120.68, Florida Statutes, and Rules 9.030(6)(1)(c) and 9.110, Florida Procedure. To initiate an appeal, a Notice of Appeal must be filed with the | ‘ironmental Protection, Office of General Counsel, 3900 Commonwealth » Tallahassee, Florida 32399-3000, and with the appropriate District Court hirty (30) days of the date this final order is filed with the Agency Clerk. “ith the District Court noust be accompanied by the filing fee specified in forida Statutes. aal rdered this 30" gay of Ajucmbenr 2001, in a. a State of Florida Department of Environmental Protection Md Alfred. Devereaux, Director Office of Beaches and Coastal Systems SNOWLEDGEMENT ©, pursuant to tatutes, with the tent Clerk, receipt acknowledged. w) Ufsofel Aebedhe A cash Date Assistant Generd! Counsel ; ‘ Approved as to Form and Legality Ud8h:21 1002-91-08 oe meet roger or RT ET er geome reer

Docket for Case No: 02-000117