STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BEN WITHERS and BEN WITHERS, INC., )
)
Petitioners, )
)
vs. ) Case No. 02-0621
)
DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case in Tallahassee, Florida, from October 9-10, 2002, before Charles A. Stampelos, an Administrative Law Judge with the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Nicholas Yonclas, Esquire
Post Office Box 386 Eastpoint, Florida 32328
For Respondent: Robert W. Stills, Jr., Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES
Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction
of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
PRELIMINARY MATTERS
On October 21, 1999, the Department issued a beaches and coastal systems permit to Leonard Pepper for the construction of a single-family dwelling seaward of the CCCL on Dog Island, Franklin County, Florida. Special Condition 1.5 required the submittal of a construction access plan, showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system. On October 16, 2000, in light of design changes to the proposed dwelling site, the Department issued an Amended Permit FR-563 to Mr. Pepper with the same access plan requirement.
On March 15, 2001, Mr. Withers, the principal for Ben Withers, Inc., who had contracted with Mr. Pepper to construct the dwelling, submitted to the Department a construction access plan for the Amended Permit, and shortly thereafter, the Department accepted and approved the access plan. On April 11, 2001, the Department issued a Notice to Proceed for the dwelling construction work to begin.
On or about May 1, 2001, Mr. Withers traversed the Easy Street Easement on the western part of Dog Island.
On May 7, 2001, the Department issued a Notice of Violation/Cease and Desist to Ben Withers and Ben Withers, Inc., for alleged unauthorized clearing and destruction of dunes and native vegetation for the purposes of constructing a roadway seaward of the CCCL without the benefit of a permit from the Department, i.e., the narrows violation.
On May 8, 2001, the Department issued a Notice of Permit Violation/Cease and Desist to Ben Withers and Ben Withers, Inc., for alleged unauthorized grading and excavation at the Pepper home project site, i.e., the project site violation.
On November 30, 2001, the Department issued a preliminary Final Order to Petitioners, assessing an administrative fine of
$500.00 for the project site violation. Thereafter, Petitioners timely filed a Petition for Administrative Hearing relative to this preliminary Final Order, and the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an administrative law judge and the conduct of a final hearing. The matter was assigned Case No. 02-0117.
On January 11, 2002, the Department entered a separate preliminary Final Order to Petitioners, assessing an administrative fine of $7,500.00 and administrative damages of
$5,000.00 for the narrows violation. Thereafter, Petitioners
filed a Petition for Administrative Hearing relative to this second preliminary Final Order, and the Department referred the Petition to the Division for the assignment of an administrative law judge and the conduct of a final hearing. The matter was assigned Case No. 02-0621.
Over objection by the Department, both cases were consolidated for final hearing. The consolidated cases were set for final hearing for May 21-22, 2002, but continued at the request of the Department. The final hearing was re-scheduled for, and was held on, October 9-10, 2002.
On October 7, 2002, the Department issued a Rescission of Final Order pertaining to the project site violation, rendering moot the Petition filed in Case No. 02-117. The Department subsequently filed an unopposed Motion to Relinquish Jurisdiction to the Department.
On October 9, 2002, the Department filed a Motion in Limine, seeking to prohibit the introduction of testimony and exhibits relating to a previous criminal trespass charge against Mr.
Withers, initiated by The Nature Conservancy; a malicious prosecution suit prosecuted by Mr. Withers against The Nature Conservancy; a settlement agreement between Mr. Withers and The Nature Conservancy relating to the prior items; The Nature Conservancy's request(s) to take action against Mr. Withers; and photographs of Rick Clevenger's work on Dog Island. The Motion
was granted as to the first three items and denied as to the last two items.
On October 21, 2002, an Order Closing File was entered in Case No. 02-0117, and jurisdiction was reserved to consider a motion for an award of attorney's fees and costs which could be filed by Petitioners pursuant to Sections 57.111 and 120.595(1), Florida Statutes. (Petitioners reserved the right to file such motions at the outset of the final hearing.) Petitioners filed a motion for an award of attorney's fees and costs (pursuant to Section 120.595(1), Florida Statutes) in Case No. 02-0117.
Petitioners also filed a separate motion for an award of attorney's fees and costs (pursuant to Section 57.111, Florida Statutes) in Case No. 02-4468F, and the Department filed a response to both motions. Separate orders have been issued disposing of these motions in the respective cases.
The Department's Exhibits 1-35 were admitted into evidence. The Department presented the following witnesses: Tony McNeal, Kenneth Greenwood, Ken Jones, John A. Poppel, Ben Withers, William Fokes, Phil Sanders, and Jim Martinello.
Petitioners' Exhibits 1–9 were admitted into evidence. Ben Withers testified on behalf of Petitioners.
At the conclusion of the hearing, the parties were given 15 days after the filing of the transcript to file their proposed recommended orders. The four-volume hearing transcript was filed
with the Division on November 13, 2002. The Department requested an extension of time to file a proposed recommended order which was granted. The parties filed proposed recommended orders and they have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Parties
Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida.
Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.)
Mr. Withers is a licensed general contractor.
The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program
The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant
to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code.
Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code.
Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case.
Accessing the Pepper Project Site Under Amended Permit FR-563
Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island.
The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north.
The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the
island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the
two.
The Easy Street Easement is an easement area for a
roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same.
The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13.
Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29.
Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area.
The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island.
The CCCL Permits
On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island.
Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit.
Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system.
On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and
approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system.
Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house.
In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval.
The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site.
The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site.
Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route.
On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1.
The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL.
The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154.
The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward
of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island.
As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R-
159 (running west to east) and landward of the CCCL east of R-159.
The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35.
However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A.
The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the
route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks.
On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit.
Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to
the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect.
The Violations
Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings.
On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.)
The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL.
Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding."
The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks.
After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west
along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader.
Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end.
Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around.
Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route.
Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck.
Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R-
160.
An area of excavation damage seven feet seaward of the
CCCL (beginning approximately 130 feet east of R-158) and an area
41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers
stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160.
Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do
. . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas.
Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas.
Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it.
Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit.
Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his
access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations
Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement.
On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL.
On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL
and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand.
As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the
damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed.
Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area.
Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan.
On May 7, 2001, a Notice of Violation was issued to Mr.
Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line."
Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area.
Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL.
On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a
bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation.
At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present.
Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to
have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective.
Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately
$7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation.
Administrative Fine and Damages
Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code.
Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating
circumstances. Aggravating circumstances include prior knowledge of rules.
Mitigating circumstances may be considered. Id.
Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL.
On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order.
On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL.
On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL.
On October 27, 2000, Mr. Withers wrote a letter to Mr.
McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in
which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed.
On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage."
In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was
$7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the
site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing.
He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.)
Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id.
The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00.
On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above.
As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource.
In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced.
Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
As the complaining party in this penal proceeding, the Department has the burden to prove its allegations, set forth in its Final Order regarding the narrows violation, by clear and convincing evidence. Department of Banking and Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996); Section 120.57(1)(j), Florida Statutes. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977)(the party asserting the affirmative of a factual issue generally has the burden of proof). Conversely, Mr. Withers has the burden to prove that any work he performed in the narrows area was exempt from the requirements of Section 161.053, Florida
Statutes. See Balino, supra; see also Harbor Course Club, Inc. v. Department of Community Affairs, 510 So. 2d 915, 918 (Fla. 3d DCA 1987); Walker v. Department of Transportation, 352 So. 2d 126, 127 (Fla. 1st DCA 1977).
The construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B-33, Florida Administrative Code.
"The Legislature finds and declares that the beaches in this state and the coastal barrier dunes adjacent to such beaches, by their nature, are subject to frequent and severe
fluctuations . . . and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion. . . ." Section 161.053(1)(a), Florida Statutes. CCCL's are "established so as to define that portion of the beach-dune system which is subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather
conditions. . . ." Id. See also Rule 62B-33.005(1), Florida Administrative Code.
Section 161.053(2)(a), Florida Statutes, provides that once the CCCL has been established that no person or corporation shall make any excavation, remove any beach material, or otherwise alter existing ground elevations, drive any vehicle on, over, or across any sand dune, or damage or cause to be damaged such sand
dune or the vegetation growing on thereon seaward thereof, except as provided in Section 161.053.
Section 161.053(5), Florida Statutes, provides: "Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the
department. "
Section 161.053(12)(c), Florida Statutes, provides that the Department may establish exemptions from the requirements of Section 161.053 "for minor activities determined by the department not to have adverse impacts on the coastal system." Examples of such activities include, but are not limited to, eight activities. A catch-all phrase is also provided which states: "[a]ny other
minor construction with impacts similar to the above activities." Section 161.053(12)(c)9., Florida Statutes. (Emphasis added.) ("'Construction' is any work or activity, including those activities specified in section 161.053(2), Florida Statutes, which may have an impact as defined in this Rule." Rule 62B- 33.002(13), Florida Administrative Code.)
Rule 62B-33.004(3)(c), Florida Administrative Code, provides that "[m]inor activities which do not cause an adverse impact on the coastal system and do not cause a disturbance to any significant or primary dune are exempt from the permitting
requirements of this chapter. Such activities shall be conducted so as not to disturb marked marine turtle nests or known nest locations or damage existing native salt-tolerant vegetation." Eleven activities are described.
Importantly, none of the examples of "activities" in Subsection 161.053(12)(c)1.-9. or in Rule 62B-33.004(3)(c)1.-11., authorize those activities proscribed in Section 161.053(2), recited above, which are done seaward of the CCCL. For example, Subsection 161.053(12)(c)6., Florida Statutes, provides an exemption for "[t]he removal of any existing structure or debris from the upland, provided there is no excavation or disturbance to the existing topography or beach/dune vegetation." (Emphasis added.) Rule 62B-33.004(3)(c)10. provides an exemption for "[l]andscaping located a minimum of 30 feet landward of the frontal due, escarpment, or coastal armoring structure which does not involve excavation of existing grade or destruction or removal of native salt resistant vegetation." (Emphasis added.) There is also an exemption for "[m]ono-post structures including umbrellas,
. . . provided there is minimal disturbance to the beach and dune system, no damage to vegetation, and the grade is restored." Rule 62B-33.004(3)(c)4., Florida Administrative Code. (Emphasis added.)
Rule 62B-33.002(21), Florida Administrative Code, defines "excavation" as "any mechanical or manual removal or
alteration of consolidated or unconsolidated soil or rock material from or within the beach and dune system."
Rule 62B-33.002(7), Florida Administrative Code, defines the "Beach and Dune System" as "that portion of the coastal system where there has been or there is expected to be, over time and as a matter of natural occurrence, cyclical and dynamic emergence, destruction and reemergence of beaches and dunes."
Rule 62B-33.002(13), Florida Administrative Code, defines the "Coastal System" as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line. "
Pursuant to Rule 62B-33.002(17), Florida Administrative Code, a "'Dune' is a mound, bluff or ridge of loose sediment, usually sand-sized sediment, lying upland of the beach and deposited by any natural or artificial mechanism, which may be bare or covered with vegetation and is subject to fluctuations in configuration and location."
The Department clearly and convincingly proved that Mr.
Withers excavated and caused damage to the dunes and native vegetation seaward of the CCCL in the narrows area.5 Conversely, Mr. Withers did not prove that this activity was exempt from the permitting requirements of Section 161.053, Florida Statutes.
Mr. Withers possessed a permit to drive construction equipment and materials over sand dunes and dune vegetation within
the access plan route. Incidental damage from traversing was expected by the Department. However, Mr. Withers did not have a permit or permission from the Department to improve the access route seaward of the CCCL, whether it be by excavation or altering existing ground elevations, or by smoothing the route seaward
of CCCL. See, e.g., Department of Natural Resources v. Robert H.
Hatfield, Case NO. 85-2777, 1986 WL 402269 (DOAH Recommended Order June 20, 1986)(scraping of sand and removal of sand below CCCL).
The statutes and rules required Petitioners to acquire a permit. The Department clearly and convincingly proved that Mr. Withers smoothed out and leveled areas seaward of the CCCL by mechanically moving unconsolidated soil with a front-end loader. This is a violation of Section 161.053(2)(a), Florida Statutes, because Mr. Withers did not possess a permit to perform this activity.
The exemptions under Section 161.053(12), Florida Statutes, and Rule 62B-33.004(3)(c), Florida Administrative Code, do not apply here because the activity of excavating the sand dunes and vegetation seaward of the CCCL is not an authorized exemption.
The Department made a determination that the harm was "willful" and "major" in accordance with Rule 62B-54.002, Florida Administrative Code, and assessed an administrative fine in the amount of $7,500.00.
The Department made a determination that the harm to the resource was both "knowing" and "major" in accordance with Rule 62B-54.003, Florida Administrative Code, and assessed damages of
$5,000.00.
The Department clearly and convincingly proved that there was a need for restoration of and damage done to an ecological resource in the narrows area, i.e., 5,809.4 square feet, and that Mr. Withers knowingly and willfully violated Section 161.053(2), Florida Statutes, resulting in harm to the coastal or beach-dune system.
Rules 62B-54.002(1) and 62B-54.003(1) refer to grades of harm, but there is no definition of what constitutes major, moderate, or minor harm. But see Rule 62B-33.002(30)(a)-(c), Florida Administrative Code, defining several types of impacts.
On this record, given the location and extent of the damage seaward of the CCCL in the narrows area, the Department clearly and convincingly proved the damage and harm done was more than minor, but less than major. The Department proved the harm to the resource was moderate. A damage amount of $4,500.00 is appropriate. See Finding of Fact 78 and Endnote 4. (The minimum amount is $1,000.00.)
In balancing the aggravating and mitigating circumstances presented in this proceeding, a fine of $3,500.00 is appropriate.6 (The range is between $1,000.00 and $5,000.00.)
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows:
That a final order be issued adopting this Recommended Order; and
Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection.
DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida.
CHARLES A. STAMPELOS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
ENDNOTES
1/ Mr. Withers made handwritten notes on the approved access plan which stated in part: 1) equipment shall access down Easy Street, and 2) materials shall access Easy Street and beach access which is located on the owners property.
2/ Mr. McNeal states that "[g]rading is generally the smoothing out of the ground surface, whereas excavation generally involves penetrating ground surface to some depth to move around and so on."
3/ The Nature Conservancy proposed that the access plan travel south toward the sandy beach, instead of north of the cul-de-sac, and proceed west along the entire sandy beach until there was "a blow-out in the dune system" and then head north to landward of the CCCL until the original access plan route was met. At the end of the meeting the Department issued a field permit to The Nature Conservancy, as a property owner, for the purpose of obtaining construction access to construct two houses located landward of the CCCL.
4/ Mr. Jones' $7,500.00 cost damage assessment was calculated for 9,800 square feet for the entire narrows violation. The actual damaged area for site one was 5,305.6 square feet and 503.8 square feet for site two, with both sites comprising the narrows violation. Compare Department Exhibit 18 with Department
Exhibit 11A.
5/ Mr. Withers concedes that he traversed within the coastal system and seaward of the CCCL. He has steadfastly denied excavating any area seaward of the CCCL in the narrows area.
6/ The provisions of Rules 62B-54.002 and 62B-54.003 are not mutually exclusive. Rule 62B-54.004(1), Florida Administrative Code.
COPIES FURNISHED:
Nicholas Yonclas, Esquire Post Office Box 386 Eastpoint, Florida 32328
Robert W. Stills, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
David B. Struhs, Secretary
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Kathy C. Carter, Agency Clerk Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 21, 2003 | Agency Final Order | |
| Jan. 09, 2003 | Recommended Order | Department provided by clear and convincing evidence that Petitioners excavated seaward of the coastal construction control line on Dog Island in violation of a permit and Section 161.053(2), Florida Statutes. |
