STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION BY AND THROUGH BROWARD COUNTY AS DELEGEE
G AND G MARINE, INC., AND C-TERM PARTNERS,
Petitioners,
PALM BEACH POLO HOLDINGS, INC., AND BROWARD COUNTY,
Respondents,
and
BROWARD YACHT AND MARINE, LLC,
Intervenor.
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) DOAH CASE NO. 08-1393
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The Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO") to Broward County ("County"), as Delegee for the Florida Department of Environmental Protection ("DEP"), in this formal administrative proceeding. Copies were served upon counsel for: the Petitioners, G and G Marine, Inc. ("G&G"), and C-Term Partners ("C-Term"); the Respondents, Palm Beach Polo Holdings, Inc. ("Applicant" or "PBPH"), and County; and Intervenor, Broward Yacht and Marine, LLC ("Broward Marine"). A copy of the Recommended Order is attached hereto as Exhibit "A".
The Petitioners and the Respondents filed Exceptions to the Recommended Order. The Petitioners subsequently filed Responses to the Applicant's Exceptions. The matter is now before the County, acting by and through its Environmental
Filed May 3, 2011 11:26 AM Division of Administrative Hearings
Protection and Growth Management Department {"Department"), for final agency action.
The Applicant is the owner of certain property located at 750 NE th Avenue, Dania Beach, Florida, including certain submerged lands comprising the approximate
western two-thirds {2/3) portion of a private basin known as Port Laudania {the "PBPH Property"). Petitioner C-Term is the owner of certain property located at 760 NE 7th Avenue, Dania Beach, Florida, including submerged lands comprising the approximate eastern one-third {1/3) portion of the Port Laudania basin {the "C-Term Property"). G&G is the lessee of the C-Term Property. The Port Laudania basin is subject to a Cross Use Easement for Ingress and Egress {the "Cross-Use Easement") recorded in
O.R. Book 14904 at Page 0164 of the Public Records of Broward County, Florida. The Port Laudania basin {"Basin") is located within property immediately north of the Dania Cut-off Canal {"Canal"), intersecting with the Canal along its southern boundary.
From November 1998 to March 2005, Broward Yachts, Inc. {"Broward Yachts"), leased the PBPH Property from PBPH. During that time, Broward Yachts engaged in the manufacture and sale of private yachts and boat dockage.
Pursuant to a certain "Delegation Agreement Among The Florida Department of Environmental Protection, The South Florida Water Management District and Broward County" ("Delegation Agreement") dated May 22, 2001, the County was delegated the responsibility and authority for permitting, compliance, and enforcement on ·behalf of DEP and the South Florida Water Management District Environmental Resource Permit
{"ERP") Programs.
Section 11E. of the Delegation Agreement provides that permits issued by the County under the Delegation Agreement "shall consolidate in a single document the permit under part IV of chapter 373 of the Florida Statutes and any required Environmental Resource License" ("ERL") required under Chapter 27 of the Broward County Code of Ordinances ("BCC" or "Code").
On January 22, 2002, the County visited the PBPH Property in response to a complaint about unlicensed docks.
On or about April 2002, Broward Yachts submitted an after-the-fact application to EPD, seeking the necessary ERP and ERL (the "Dock Application"). The Dock Application sought approval to install six (6) total docks comprised of five (5) floating docks in the Basin, with lengths ranging from 150 feet to 190 feet, and one dock, in the canal parallel to the seawall, with a length of 240 feet.
In May 2002, the EPD issued Warning Notice No. WRN02-0125 to Broward Yachts for constructing docks and installing pilings on the PBPH Property without a valid Environmental Resource License in violation of Subsection 27-333(a)(1), BCC, (the 'Warning Notice").
The Dock Application was assigned ERP Application No. 06-0194386-001 and ERL File No. ER0205-002, which is also referred to in the records as Environmental Resource License DF03-1121.
By letter dated January 31, 2005, EPD advised Broward Yachts of its decision to deny the Dock Application (the "Application Denial") relying on a lack of "... reasonable assurance that the proposed docks will not negatively affect navigation and safety, nor violate the Cross-Use Easement. .. "
Broward Yachts filed a Petition for Review of Final Administrative Determination, Environmental Resource License Application No. DF03-1121, Environmental Resource Permit Application No. 06-0194386-001 (the "Administrative Review Petition") with EPD on February 7, 2005, challenging the denial of its "license and permit applications." The Administrative Review Petition invoked the procedures of Chapter 27, BCC.
On or about March 2, 2005, Broward Yachts sold certain of its assets to Lewis Property Investors, Inc., under an instrument entitled "Asset Purchase Agreement." On or about March 8, 2005, Lewis Property Investors, Inc., assigned its interest in the Asset Purchase Agreement to Broward Marine.
By letter dated March 11, 2005, EPD advised Broward Yachts that its prior decision to deny the Dock Application had been upheld by the Department Director (the "Final Denial").
On March 30, 2006, a hearing was held before Mark Goldstein, as hearing examiner ("Hearing Examiner"), on the matters raised in Broward Yachts' Administrative Review Petition.
Steven R. Ganoe, an officer or director of G&G, was present but did not testify at the hearing before the Hearing Examiner.
The Hearing Examiner entered a Final Order on June 5, 2006.
The County and G&G both filed Motions for Reconsideration. On June 23, 2006, the Hearing Examiner entered the Omnibus Order Granting in Part and Denying in Part Post Hearing Motions (the "Omnibus Order").
No Petition for Writ of Certiorari was filed by G&G, Broward Yachts or PBPH challenging the Final Order or Omnibus Order pursuant to Section 27-42, BCC, general law, or Florida Rules of Appellate Procedure.
On October 23, 2006, EPD issued a Notice of Intent to Issue a combined permit/license for the construction of five docks in the west side of the Basin, ranging from 132 to 192 feet in length (the "October NOi"). The draft permit attached to the October NOi contained a condition ("Condition 18") prohibiting the mooring of vessels with lengths exceeding the length of the permitted docks.
G&G challenged the October NOi by filing a petition for formal proceedings. Broward Marine also filed a petition for formal proceedings challenging the October NOi. On December 6, 2006, the County entered an Order Dismissing the Petitions with leave to amend.
On or about August 23, 2007, EPD issued its Notice of Intent to Issue Permit/License (the "NOi") to PBPH. The NOi identifies the proposed project as the Broward Yachts Marine Facility, with Permit No. 06-0194386-001 a nd License No. DF03-1121.
The draft Environmental Resource Permit & License (the "Proposed Permit") attached to the NOi purports to allow PBPH to construct five (5) floating finger piers (the "Piers") in the west side of the Basin, with a total over-water area of 5,378.25 square feet. From north to south, the Piers would have the following sizes/dimensions: (1) 7.5- foot-wide by 122 foot-long pier; (2) 7.5-foot-wide by 135.8-foot-long pier; (3} 7.5-foot wide by 156.2-foot-long pier; (4) 7.5-foot-wide by 150.5-foot-long pier; and (5) 7.5-foot-
wide by 152.6-foot-long pier. All five Piers shall be placed sixty-five (65) feet apart, and angled in a southeasterly direction from the existing seawall.
The Proposed Permit does not place any restriction or limitation on the length of the vessels that may be moored at the Piers.
On October 8, 2007, Petitioners filed their Second Amended Petition for Formal Proceedings. Petitioners did not file any proceedings under Chapter 27 as to the NOi.
On March 19, 2008, Broward County filed its request for Assignment of Administrative Law Judge and Notice of Preservation of Record ("the Request") with a Second Amended Petition for Formal Proceedings ("the Petition") attached.
The Petition had been filed by G & G Marine, Inc. and C-Term Partners. It requested review pursuant to Section 120, Florida Statutes (2007), of the NOi to issue ERP No. 06-0194386-001 by Broward County. The applicant for the Permit is PBPH.
The request was granted. In the interim, Broward Yacht & Marine, LLC, as tenant in possession of PBPH property, sought to intervene. Leave was granted on October 13, 2008.
After several continuances, the final hearing commenced on February 10, 2010. Eight days of hearings were held over three separate weeks. The hearing concluded on March 10, 2010.
The Recommended Order now on administrative review was submitted by the Administrative Law Judge ("ALJ") on October 14, 2010. The ALJ found that County's evaluation and processing of the 2002 Dock Application was conducted appropriately pursuant to the Delegation Agreement. The ALJ concluded Petitioners have shown a
substantial interest in the 2007 NOi and the Proposed Permit issued by the County. The ALJ also concluded Petitioners have shown that the configuration of the finger piers authorized by Proposed Permit, specifically the length of the fifth finger pier, is likely to interfere with navigation in and around the basin, the ability of vessels that intend to dock at Petitioners' facility to come in and out of the basin safely, and Petitioners' property rights established by the Cross-use Easement.
The ALJ concluded that Broward Marine is no longer a tenant of the PBPH Property and did not have standing to participate in the proceeding.
The ALJ concluded that the activity subject to the Proposed Permit is governed by Section 373.414(1)(a), Florida Statutes (the "Additional Criteria Statute"), and Rule 40E-4.302, Florida Administrative Code (the "Additional Conditions Rule"). The ALJ concluded PBPH has the burden of proof to demonstrate that the activity is "not contrary to the public interest," that is, that it meets the Public Interest Test. The ALJ concluded that, in making the determination of whether that burden has been met, Broward County must consider and balance the seven criteria listed in the Additional Criteria Statute and the Additional Conditions Rule.
The ALJ ultimately recommended that Broward County:
modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or
absent some modification, deny the issuance of the Proposed Permit as applied for by PBPH.
Section 120.57(1)(k), Florida Statutes, provides that the final order shall include an explicit ruling on each exception and that an agency need not rule on an exception that does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.
Section 120.57(1)(1), Florida Statutes, provides that an agency may not reject or modify findings of fact in a recommended order, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence." An agency may not reweigh the evidence, attempt to resolve conflicts therein, or judge the credibility of witnesses. Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Greseth
v. Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). Such evidentiary matters are within the province of the ALJ, as the "fact-finder" in this formal administrative proceeding. See, , Dunham v. Highlands County School
Board, 652 So. 2d 894 (Fla. 2d. DCA 1995); Florida Dep't of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987).
Section 120.57(1)(I), Florida Statutes, further provides that an agency may modify or reject those conclusions of law in a reco mended order over which it has "substantive jurisdiction." The related Florida case law holds that an agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction
and expertise. Public Employees Relations Comm'n v. Dade County Police Benevolent
Ass'n, 467 So. 2d 987, 989 (Fla. 1985); City of Wilton Manors v. Dep't of Mgmt. Servs.,
48 So. 3d 962, 966-68 (Fla. 4th DCA 2010). Great deference should be given to such agency interpretations of statutes and rules within their regulatory jurisdiction, and such interpretations should not be overturned unless "clearly erroneous." Public Employees
Relations Comm'n, 467 So. 2d at 989; City of Wilton Manors, 48 So. 3d at 966. Furthermore, these agency interpretations of their own statutes and rules do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. Suddath Van Lines, Inc. v. Dept. of Environmental Protection, 668
So. 2d 209, 212 (Fla. 1st DCA 1996); Stuart Yacht Club & Marina v. Florida Dep't of
Natural Resources, 625 So. 2d 1263, 1267 (Fla. 4th DCA 1993).
Exception 1:
In Exception 1, the County correctly draws attention to a scrivener's error in the Preliminary Statement section on page 4 at line 2 of the Recommended Order where it read, "Julie Krawcyzk." No response to this exception was filed. Based upon a review of the entire record, the ALJ's use of "Krawcyzk" is not based upon the competent, substantial evidence, and the preponderance of the competent, substantial evidence shows that "Krawczyk" is the correct rendering of the witness' name. See Hearing Transcript, Vols. 1, 2, 3, 4, 5, and 8. Accordingly, I grant County's Exception 1 and the RO shall be modified to reflect these corrections.
Exception 2:
In Exception 2, the County correctly takes exception to the description of the docks or finger piers as being "southwesterly" in Findings of Fact contained in paragraphs 45, 57, and 107, as well as in endnote 19. No response to this exception
was filed. From a review of the entire record, the ALJ's description of docks or finger piers as "southwesterly" was not based upon competent, substantial evidence. Rather, the preponderance of the competent, substantial evidence shows that the description and depictions of the docks or finger piers is consistent with "southeasterly." Respondent's Exhibits 13 and 14; Hearing Transcript, pps. 84, 524, and 859. Therefore, the description of the docks or finger piers in each paragraph referenced should read "southeasterly." Accordingly, I grant County's Exception 2 and the RO shall be modified to reflect these corrections.
Exception 3:
In Exception 3, the County takes exception to the description of Eric Myers' position being "Director of the EPD" in Findings of Fact on page 4, line .6 and in paragraphs 76, 110 and 120. No response to this exception was filed. From a review of the entire record, the ALJ's description of Mr. Myer's position was not based upon competent, substantial evidence. Rather, the preponderance of the competent, substantial evidence shows that Mr. Myers was, at all relevant times, Director of the "Broward County EPD, Biological Resources Division." (Hearing Transcript. PP.S, 59-60, 80, and 480-481. Accordingly, I grant County's Exception 3 and the RO shall be modified to reflect these corrections.
Exception 4:
In Exception 4, the County takes exception to the reference to "Broward County" in a Finding of Fact in paragraph 97. No other party filed a response to this xception. Based upon a review of the entire record, the ALJ's attribution of Broward County as the entity which constructed docks pursuant to a general license was not based upon
competent, substantial evidence. Rather, the competent, substantial evidence shows that the entity referenced therein should be "Broward Marine." Respondents' Exhibits 8 and 9; Hearing Transcript pps. 68, 70, 242-243, 393, 899, 937, and 989. Accordingly, I grant County's Exception 4 and the RO shall be modified to reflect this corrections.
Exception 1: Cross-Use Easement
In Exception 1, Petitioners take exception to the conclusion of law col'.ltained in paragraph 167 of the RO, alleging that the ALJ improperly used extrinsic evidence in construing an unambiguous easement. Petitioners argue that the plain language of the Cross-Use Easement requires that the entire inlet be available for both owners for ingress and egress, suggesting that, in application, no permanent structures may be built in the basin, such as finger piers. Petitioners also rely on the ALJ's Finding of Fact No. 8 that the Cross-Use Easement provides for amendments to be in writing and that no amendment has been agreed to by C-Term for the construction of the docks contemplated by the 2007 Notice of Intent and Proposed Permit. No responses to this exception were filed.
The County declines Petitioners' suggestion to reject the conclusion of law as determined by the ALJ. First, the ALJ relied upon general easement law in making the conclusion of law in paragraph 167. The County does not have substantive jurisdiction over general easement law, either by County ordinance or by delegation. It does not have the special expertise or primary responsibility of interpreting statutes and rules in regard to general easement law. Therefore, Petitioners' exception cannot be granted on
the County's special expertise or primary responsibility. Second, while the ALJ described the Cross-Use Easement as "unambiguous," he also referenced case law that, while "effect should be given to its plain language," the standards for construction of an easement include consideration of extrinsic evidence, as well. RO paragraphs 162-166. Petitioners only take exception to paragraph 167, but accepts the ALJ's
conclusions of law in paragraphs 164-166, which include that, under Deifenderfer v. Forest Park Springs, 599 So. 2d 1309 (Fla. 5th DCA 1992), the proper construction of an express easement over a given area for ingress and egress depends on what the original parties intended, as well as their successors, as shown by the circumstances, actions and statements of those involved, and that the Cross-Use Easement is open to such construction. RO at paragraphs 165-166. The ALJ then determined the limitation on PBPH imposed by the Cross-use Easement " is that a permit cannot .authorize structures that do not accommodate the actual and reasonable needs of C-Term and its tenant G&G," relating those needs back to the safety and navigation issues addressed by the ALJ in paragraphs 168 through 172. Because the ALJ relied upon conclusions of law which can be read in concert to support his conclusion of law in paragraph 167, and because Petitioners do not take exception to the conclusions of law pro iding the rationale the ALJ relies upon in considering and applying certain extrinsic evidence, I decline to grant this exception and defer to his interpretation of the law. Third, Petitioners raise the lack of any written amendment to the Cross-Use Easement as a
conflict with the conclusion of law drawn by the ALJ in paragraph 167, noting that it does not contain the Finding of Fact in paragraph 8. While the ALJ finds in paragraph 8 that amendments to the Cross-Use Easement must be in writing and that no such
written amendment providing for the docks has been agreed to by C-Term, it is clear that the ALJ simply viewed paragraph 167 as an application of the legal standards for construction of such an easement, not a modification or amendment. Because Petitioners cite no authority for consideration that the ALJ's construction of the Cross Use Easement amounts to a modification or amendment, I decline to grant this exception on such a basis. Accordingly, Petitioners' Exception 1 is denied.
Exception 2: ALJ's Recommendation
In Exception 2, the Petitioners state that paragraph (a)· of the ALJ's recommendation is incomplete in that it omits a condition limiting the length of vessels that may be moored at the finger piers. Petitioners suggest that the ALJ inadvertently omitted the recommendation of a condition limiting the length of vessels moored at the proposed docks or finger piers. Petitioners cite to Findings of Fact in paragraphs 139, 142, and 143 as support. No responses to this exception were filed. There is nothing in the record to support Petitioners' characterization of the omission of such a condition by the ALJ as inadvertent. The ALJ, as trier of fact and law, was in the best position to judge the credibility of all of the witnesses and weigh all of the evidence presented, including the testimony of Mr. Ganoe, Petitioners' own client representative, that vessels are distinguishable from docks because they are able to be moved, if needed, to provide adequate space for ingress and egress and vessels are not being permanent in the same sense as docks. Hearing Transcript, pp. 883-884. After review of the entire record, whether the ALJ's ultimate recommendation is properly considered a finding of fact, conclusion of law, or mixture, County does not and cannot assert that the record has no competent, substantial evidence relating to the omission of a vessel length
restriction in the ALJ's ultimate recommendation, does not and cannot assert that declining to recommend a vessel length restriction violates the essential requirements of the law governing this proceeding, and does not and cannot assert that such an additional condition is as reasonable or more reasonable than the ALJ's recommendation.
Petitioners additionally note that the County has the authority to impose such an additional condition as necessary to carry out the extent of the permitting regulations, suggesting that failure to do so would require that the Proposed Permit be denied in its entirety. While Petitioners correctly note that the County, as delegee, has the· authority to impose conditions on the issuance of a permit beyond those in a recommended order, Petitioners have not suggested a basis for County to impose such a condition, other than the references to Mr. Danti's testimony, which the County cannot reweigh.. Therefore, Petitioners' Exception 2 is denied.
Exception 1: Reliance on Dock Configuration
In Exception 1, PBPH takes exception to the findings of fact in paragraph 106 of the RO to the extent that the ALJ relied solely "upon the dock configuration as. of March 2006" and at the time of the 2010 hearing. PBPH contends that the ALJ failed to consider various other aerial photos in evidence. Petitioners responded that the ALJ stated that "[n]either the Final Order nor the Omnibus Order contained finding of fact as to a configuration of docks determined by the Hearing Examiner to be existing at the
time." RO, paragraph 106. This finding of fact addresses the ALJ's consideration of the Final Order and Omnibus Order entered by a Broward County Hearing Examiner on an earlier administrative proceeding under the County Code of Ordinances related to the same application. RO, paragraphs 100-105. This finding of fact simply notes that "[n]either the Final Order nor the Omni.bus Order contains a finding of fact as to the configuration of docks at the time of the hearing conducted by the Hearing Examiner." It continues by describing evidence in the record of this proceeding regarding the configuration of the docks on March 30, 2006, the date of hearing upon which the Final Order and Omnibus Order were issued, and the time of the final hearing in this proceeding. The finding of fact does not characterize either the Hearing Examiner's consideration of dock configurations or the ALJ's as relying "solely" upon the configurations present at those times. In fact, the recommended order· contains numerous findings of fact regarding the presence and configuration of docks in the Basin at other times. RO, paragraphs 14-15, 30, 32-34, 36, 39-41, 92, 97, 101, 103, 112, and 121-123. After review of the entire record, the finding of fact in paragraph 106 is based upon competent, substantial evidence, and nothing therein indicates that the ALJ "relied solely" upon that finding of fact, as asserted by PBPH. Consequently, PBPH's Exception 1 is denied.
Exception 2: More Permanent Characterization of Finger Piers
In Exception 2, PBPH takes exception to the finding of fact in paragraph 119 of the RO characterizing the structure of the docks proposed in the 2007 Notice of Intent as "more permanent," asserting that certain sections of the Notice of Intent do not support the ALJ's conclusion and the record of this proceeding does not include
competent, substantial evidence to support that characterization by the ALJ. Petitioners responded to this exception, asserting that the finding of fact is supported by competent, substantial evidence, including citations to the record, and asserting that the County may not alter or expand upon the ALJ's finding of fact. After review of the entire record, while the ALJ's attribution of a "more permanent" nature of the proposed docks to the 2007 Notice of Intent may not be explicitly expressed therein, the record contains references to the differences of the proposed concrete docks with the prior wood and Styrofoam docks constructed in the Basin, including the characterization that concrete docks would be more permanent. RO at paragraphs 34, 40, 157, 173, 174; Hearing
Transcript at pp. 249, 580, 611, 711-715, 822, 832, 837-838, 842-843, 856, 05, 906.
1087. The County cannot assert that this finding of fact is not based upon competent, substantial evidence. Further, the prerogatives to weigh the evidence and judge the
credibility of witnesses lie solely with the ALJ. Strickland v. Florida A&M University, 799 So. 2d 276 (Fla. 1st DCA 2001). An agency may not reweigh the evidence, attempt to
resolve conflicts therein, or judge the credibility of witnesses. Rogers v. Dep't of Health,
920 So. 2d 27, 30 (Fla. 1st DCA 2005); Greseth v. Dep't of Health & Rehabilitative
Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). Accordingly, PBPH's Exception 2 is denied.
Exception 3: Reference and Reliance to the "Unobstructed Line" and "Safety Zone"
In Exception 3, PBPH takes exception to the ALJ's reference to and reliance upon the "Unobstructed Line" and "Safety Zone" referred to in paragraphs 136, 137, and 139 of the RO. Petitioners responded, referring to expert witness testimony of Mr. Danti. These findings of fact refer to Mr. Danti's testimony as an expert witness.
Hearing Transcript, pps. 1198-1539. After review of the entire record, the County cannot assert that these findings of fact are not based upon competent, substantial evidence. Further, the prerogatives to weigh the evidence and judge the credibility of
witnesses lie solely with the ALJ. Strickland v. Florida A&M University. 799 So. 2d 276 (Fla. 1st DCA 2001). An agency may not reweigh the evidence, attempt to resolve
conflicts therein, or judge the credibility of witnesses. Rogers v. Dep't of Health, 920 So.
2d 27, 30 (Fla. 1st DCA 2005); Greseth v. Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). Consequently, PBPH's Exception 3 is denied.
Exception 4: "Unobstructed Line" or "Safety Zone"
In Exception 4, PBPH states that "[t]here is no competent substantial evidence in the Record in this case that the imaginary 'Unobstructed Line' or 'Safety Zone' are provided for in the Cross-Use Easement or in the County Code or State Rules and Regulations applicable to the subject application for License and Permit." PBPH does not reference specific findings of fact or conclusions of law in this exception. Petitioners responded, asserting that the application of the Public Interest Test requires determinations regarding adverse effects upon safety, navigation, and the property of others, and that no assertion has been made that the "Unobstructed Line" or "Safety Zone" are provided for in the Cross-Use Easement, the County Code of Ordin_ances, or State rules and regulations. To the extent that this exception may be intended to be read together with PBPH's Exception 3, and after review of the entire record, the County cannot assert that these findings of fact are not based upon competent, substantial evidence. Further, the prerogatives to weigh the evidence and judge the credibility of
witnesses lie solely with the ALJ. Strickland v. Florida A&M University. 799 So. 2d 276
(Fla. 1st DCA 2001). An agency may not reweigh the evidence, attempt to resolve
conflicts therein, or judge the credibility of witnesses. Rogers v. Dep't of Health, 920 So.
2d 27, 30 (Fla. 1st DCA 2005); Greseth v. Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). While PBPH may be correct in noting that the terms "Unobstructed Line" or "Safety Zone" are not provided for in the cited authorities, no authority is cited that would allow the County to reject or modify these findings of fact. Consequently, PBPH's Exception 4 is denied.
Exception 5: Length of Vessels Moored at Finger Piers
In Exception 5, PBPH takes exception to paragraph 142 and the ALJ's reference to the testimony of Mr. Danti regarding the length of vessels moored in the finger piers. PBPH claims, "[t]here is no provision in the Cross-Use Easement, . . . the County Code or State Rules and Regulations applicable to the docks covered by the NOi which place any restriction on the length of vessels which may be moored at the docks." Petitioners responded, noting the legal limitations on the County's weighing of evidence or credibility of witnesses and noting Respondents did not offer expert testimony regarding the effect of proposed finger piers on safety and navigation. The prerogative to weigh
the evidence and judge the credibility of witnesses are solely with the ALJ. Strickland v.
Florida A&M University. 799 So. 2d 276 (Fla. 1st DCA 2001). An agency may not reweigh the evidence, attempt to resolve conflicts therein, or judge the credibility of witnesses. Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Greseth
v. Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). After review of the entire record, the County cannot and does not assert that the finding of fact reflected in paragraph 142 and references to Mr. Danti's testimony regarding the
length of vessels moored in the finger piers are not based on competent, substantial evidence. Accordingly, the extent of the ALJ's reliance and weight assigned to the expert testimony of Mr. Danti may not be disturbed. Consequently, PBPH's Exception 5 is denied.
Exception 6: Length of Fifth Finger Pier
In Exception 6, PBPH contests the finding of fact in paragraph 141 that the fifth finger pier will adversely affect safety and navigation in the Basin. PBPH asserts that, due to conflicting testimony among the witnesses and the orders entered by the Broward County Hearing Examiner from the March 30, 2006 license denial hearing, the finding of fact is not based on competent, substantial evidence. Petitioners responded, citing authority that it is the hearing officer's role to weigh evidence when it may support two inconsistent findings, noting that Mr. Danti testified as an expert witness, unlike the witnesses PBPH's exception relies upon, and asserting that the prior orders are not relevant. The prerogative to weigh the evidence and judge the credibility of witnesses lie solely with the ALJ. Strickland v. Florida A&M University, 799 So. 2d 276 (Fla. 1st DCA 2001). An agency may not reweigh the evidence, attempt to resolve conflicts
therein, or judge the credibility of witnesses. Rogers v. Dep't of Health, 920 So. 2d 27,
30 (Fla. 1st DCA 2005); Greseth v. Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). The County may not reweigh the testimony of the witnesses, even if it presents potentially inconsistent findings of fact. After review of the entire record, the County cannot and does not assert that the finding of fact is not based upon competent, substantial evidence. Consequently, PBPH's Exception 6 is denied.
Exception 7: Collateral Estoppal and Res Judicata
In Exception 7, PBPH takes exception to the conclusion of law in paragraph 152 indicating that the doctrines of collateral estoppal and res judicata do not apply in this proceeding in relation to the Final Order and Omnibus Order entered by the Broward County Hearing Examiner. Petitioners responded, generally referencing reasons stated in a prior order of the ALJ dated July 8, 2010, and asserting that the exception has no merit. Regardless of merit, the County does not have a special expertise or substantive jurisdiction, either under its own ordinances or by delegation, over the law of collateral estoppal or res judicata. Therefore, it is inconsistent with the County's discretion under Section 120.57 (1)(1), Florida Statutes, to reject or modify this conclusion of law.
In this exception, PBPH also refers to whether the docks have caused an accident and whether they impede G&G's reasonable use of the easement. These would be findings of fact, conclusions of law, or a mixture thereof, which are not present in paragraph 152 and which PBPH does not specifically refer to instances of in the record. After review of the entire record, the ALJ did not make any findings of fact in regard to accidents in the Basin or rely upon evidence from the record as to accidents in its conclusions of law, simply noting a lack of documented evidence of accidents in paragraph 168 in relation to Mr. Danti's expert witness testimony. Whether the docks have caused an accident would be a finding of fact. The prerogatives to weigh the evidence and judge the credibility of witnesses lie solely with the ALJ. Strickland v.
Florida A&M University. 799 So. 2d 276 (Fla. 1st DCA 2001). An agency may not
reweigh the evidence, attempt to resolve conflicts therein, or judge the credibility of
witnesses. Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Greseth
Dep't of Health & Rehabilitative Servs., 573 So. 2d 1004, 1006 (Fla. 4th DCA 1991). As to PBPH's contention that the County should grant an exception related to whether the docks impede G&G's reasonable use of the easement, this amounts to requesting an exception to the ALJ's conclusions of law in paragraph 167 that "a permit cannot authorize structures that do not accommodate the actual and reasonable needs of C Term and its tenant G&G," and that "[t]hose needs fall into two categories: safety and navigation," as well as the conclusions of law in paragraph 170 regarding piers intruding into the area described as a "Safety Zone," and paragraph 172 regarding the intrusion of the fifth finger pier into that "Safety Zone." To the extent that PBPH raises an exception to these conclusions of law, the County either does not have substantive jurisdiction over easement law or cannot assert a different conclusion of law that is as reasonable, or more reasonable, than the ALJ's regarding the reasonable use of an easement after review of the entire record. Therefore, PBPH's Exception 7 is denied.
Exception 8: Reliance on Safety Zone and Unobstructed Line
In Exception 8, PBPH takes exception to paragraph 170 and the ALJ's "reliance upon the 'Safety Zone' which is premised upon an imaginary 'Unobstructed Line' which imaginary 'Unobstructed Line' is not provided for in the Cross-Use Easement, the County Code or State Rules and Regulations applicable to the docks." PBPH explains that the "Unobstructed Line" is not provided for in the Cross-Use Easement, the County Code or State rules and regulations, adding that no authority was cited by the ALJ for the Cross-Use Easement to be, in effect, rewritten to include the "Unobstructed Line." Petitioners responded, asserting that the "Unobstructed Line" is a tool used in making the requisite determinations under the Public Interest Test as to whether the activity
authorized would adversely affect the safety, navigation, or property of others. Petitioners suggest that this exception does not meet the standard for the County to reject or modify a conclusion of law. Petitioners make a further argument that this exception is consistent with Petitioners' own exception that the Cross-Use Easement must be interpreted only by its express terms and that the entire Proposed Permit must be denied.
This conclusion of law is within the substantive jurisdiction of the County, as it deals with the application of the Public Interest Test. However, rejecting or modifying this conclusion of law would also require the rejection or modification of findings of fact made by the ALJ in paragraphs 136-141 of the RO. Pursuant to 120.57(1)(1), "[r]ejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact." Additionally, exceptions to the findings of fact in paragraphs 136, 137, 139, and 141 have been reviewed and denied, and the prerogatives to determine the credibility and weight of evidence lie solely with the ALJ.
Strickland, 799 So. 2d at 276. While PBPH asserts that this conclusion of law effectively rewrites the Cross-Use Easement, the ALJ does not mention the easement rights or burdens of PBPH and C-Term in making this conclusion of law.
County also does not agree with, or adopt, Petitioners' characterization of the "Unobstructed Line" as a tool used in making requisite determinations under the Public Interest Test as to the adverse effect of a proposed project on safety, navigability, and the property of others. The "Unobstructed Line" is not a tool used in making determinations under the Public Interest Test. It is a description of a line demarking an area of the Basin in question, in this case, within which Petitioners' expert witness
believes it may be safe to build docks, taking into account numerous factors specific to this case, including Petitioners' vessels, business interests, and practices. Nothing establishes the "Unobstructed Line" as a tool of legal or factual analysis able to be applied more generally, and Mr. Danti's testimony did not include that it was such a tool, or even took into account the property interests of others in any manner, as suggested by Petitioners' exception. Petitioners' description of requisite determinations of whether there are adverse effects to safety, navigation, or the property of others arising from a proposed project mischaracterizes the Public Interest Test and its application. As noted by the ALJ in paragraph 49 of the RO, "[f]or systems located in, on, or over surface waters that are not Outstanding Florida Waters, such as the finger piers and floating dock systems proposed by PBPH, reasonable assurances must be provided that the activity will not be contrary to the public interest [the 'Public Interest Test'] ... as determined by balancing seven criteria ... " While the instant case deals with a dispute relevant to three of those criteria, the requisite determination is simply whether an applicant has provided reasonable assurances that a proposed project will not be contrary to the public interest, determined by balancing the seven criteria.
After review of the entire record, the County cannot and does not agree that
PBPH's exception is as reasonable or more reasonable than the ALJ's concluslon of law in paragraph 170, and, to the extent that it would have to rely upon rejecting or modifying findings of fact in order to modify or reject this conclusion of law, County cannot and does not assert that the relevant findings of fact were not based upon competent, substantial evidence. Consequently, PBPH's Exception 8 is denied.
Exception 9: Testimony of Jim Steel
23
In Exception 9, PBPH takes exception to paragraph 171 contending th t there is no competent, substantial evidence supporting the ALJ's reliance upon the testimony of Jim Steel as to "damage to safety and navigation posed by the finger piers," citing to the record regarding Mr. Steel's experience of not hitting the docks or vessels in the Basin with his tugboats or the vessels he had under tow. Petitioners responded, characterizing the competent, substantial evidence as supporting the ALJ's conclusion that Mr. Steel's testimony establishes a "danger to safety and navigation posted by the finger piers." The prerogatives to determine the credibility and weight of evidence lie
solely with the ALJ. Strickland, 799 So. 2d at 276. The ALJ's term is actually "danger," rather than "damage." The ALJ determined that, based on Mr. Steel's experience in the Basin and Dania Cut-Off Canal, there is a danger to safety and navigation posed by the finger piers on the PBPH Parcel to G&G vessels attempting to enter or exit the Basin. This conclusion of law is within the substantive jurisdiction of the County. However, after review of the entire record, the County cannot say that Mr. Steel offered no competent, substantial evidence of danger from the finger piers to vessels entering or exiting the Basin or that granting this exception is as reasonable, or more reasonable, than the ALJ's conclusion, especially as the ALJ does not attempt to characterize the severity of the danger he believes is shown by Mr. Steel's testimony. Petitioners' response suggests that weight, or preponderance, of the competent, substantial evidence supports the ALJ's conclusion, but the standard the County must apply in reviewing any mixture of findings of fact present in paragraph 171 is simply whether there is competent, substantial evidence for a finding of fact, not to reweigh the competent, substantial evidence. Accordingly, PBPH's Exception 9 is denied.
Exception 10: Public Interest Test and the Fifth Finger Pier
In Exception 10, PBPH contests the following sentence of paragraph 172 of the RO: "[t]he 75-foot intrusion of the fifth finger pier authorized by the Proposed Permit into the Safety Zone fails the Public Interest Test." PBPH asserts that there is no competent, substantial evidence to establish that the "Safety Zone" and "Unobstructed Line" are provided for in the Cross-Use Easement, the County Code, or state rules and regulations applicable to the dock application. Petitioners responded that the "Safety Zone" has not been imposed into the Cross-Use Easement and is not expressly provided for in County Code or pertinent state rules and regulations, asserting that it is a tool for making requisite determinations under the Public Interest Test. Petitioners further argue that the Cross-Use Easement must be interpreted by its express terms, so the Proposed Permit should be denied in its entirety.
This exception and the responses filed rely upon substantially the same factual and legal arguments as PBPH's Exception 8 regarding the "Unobstructed Line" and "Safety Zone." County reiterates and reincorporates herein its response to PBPH's exception and Petitioners' response. After review of the entire record, the County cannot and does not agree that PBPH's exception is as reasonable or more reasonable than the ALJ's conclusion of law in paragraph 172, and, to the extent that it would have to rely upon rejecting or modifying findings of fact in order to modify or reject this conclusion of law, County cannot and does not assert that the relevant findings of fact were not based upon competent, substantial evidence. Consequently, PBPH's Exception 1O is denied.
Exception 11: The More Permanent Nature of the Piers
In Exception 11, PBPH challenges the conclusion of law in paragraph 174 of the ALJ's RO that "the more permanent nature" of the project bolsters the conclusion of law that a fifth finger of more than 75 feet has an adverse impact on safety and navigation. Petitioners responded, citing to their arguments on PBPH's Exception 2, which was directed to a related finding of fact regarding a more permanent nature of the proposed docks.
This conclusion of law is within the substantive jurisdiction of the County, as it deals with the application of the Public Interest Test. However, rejecting or modifying this conclusion of law may also require the rejection or modification of findings of fact made by the ALJ in paragraphs 34, 40, and 119 of the recommended order. Pursuant to 120.57(1)(1), "[r]ejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact.11 The record of the case and recommended order contain numerous references to the permanency of the proposed docks at least some of which may relate to adverse effects on safety or navigation. RO at paragraphs 34, 40, 119, 157, 173; Hearing Transcript at pps. 249,580,611, 711-715,
822, 832, 837-838, 842-843, 856, 905, 906. 1087. Additionally, exceptions to the findings of fact in paragraph 119 have been reviewed and denied, and the prerogatives to determine the credibility and weight of evidence lie solely with the ALJ. Strickland, 799 So. 2d at 276. Therefore, the County cannot and does not modify or reject findings of fact which may conflict with modification or rejection of the ALJ's conclusion of law in paragraph 174. Additionally, the County does not agree that rejection of the ALJ's conclusion of law is as reasonable, or more reasonable, than the one reached by the ALJ. Accordingly, PBPH's Exception 11 is denied.
Exception 12: Exceptions to the Recommendations
In Exception 12, PBPH challenges paragraphs (a) and (b) of the ALJ's Recommendation, arguing that it is not based on competent substantial evidence and that the competent substantial evidence supports that the southernmost proposed dock, referred to as dock 5, should be approved at 152.6 feet, as proposed in the 2007 Notice of Intent. Petitioners responded, essentially reasserting its own exceptions to the RO arguing that the 2007 Notice of Intent should be denied in its entirety, but, if granted, it should include the modification for the fifth finger pier to be limited to 75 feet and a vessel length restriction must be included, as well.
The ALJ's recommendation states:
Based upon the foregoing findings of fact and conclusions of law, it is recommended that Broward County:
modify the Proposed Permit attached to the 2007 Notice of Intent to shorten the length of the fifth finger pier to 75 feet and then issue the permit with the modification; or
absent such a modification, deny the issuance of the Proposed Permit as applied for by PBPH.
RO at p. 67. PBPH's exception is based upon the standard for making exceptions to findings of fact. To the extent that the ALJ's recommendation may be considered a finding of fact, or mixed finding of fact and conclusion of law, the County cannot and does not take the position that there is no competent substantial evidence in the record to support the recommendation. The prerogatives to determine the credibility and weight of evidence lie solely with the ALJ. Strickland, 799 So. 2d at 276. Additionally, the County does not agree that rejection of the ALJ's conclusion of law is as reasonable, or more reasonable, than the one reached by the ALJ. Consequently, PBPH's Exception 12 is denied.
On or about August 23, 2007, EPD issued its Notice of Intent to Issue Permit/License (the "NOi") to PBPH. The NOi identifies the proposed project as the Broward Yachts Marine Facility, with Permit No. 06-0194386-001 and License No. DF03-1121. The draft Environmental Resource Permit & License (the "Proposed Permit & License") attached to the NOi proposes to allow PBPH to construct five (5) floating finger piers (the "Piers") in the west side of the Basin, with a total over-water area of 5·,378.25 square feet. From north to south, the Piers would have the following sizes/dimensions: (1) 7.5 foot-wide by 122 foot-long pier; (2) 7.5 foot-wide by 135.8-
foot-long pier; (3) 7.5 foot-wide by 156.2-foot-long pier; (4) 7.5 foot-wide by 150.5 foot-long pier; and (5) 7.5 foot-wide by 152.6-foot-long pier. The Proposed Permit describes that all five Piers shall be placed sixty-five (65) feet apart, and angled in a southeasterly direction from the existing seawall. The Proposed Permit and License do not place any restriction or limitation on the length of the vessels that may be moored at the Piers, nor does it specify the angle of the Piers vis-a-vis the existing seawall at the west side of the Basin. Petitioners challenged the Proposed Permit in this proceeding, seeking a denial of the Proposed Permit. Amended Petition at p. 8. The record of this action shows competent substantial evidence that proposed activity may pose adverse impacts to safety and navigation that could be contrary to the public interest. The record of this action also shows competent substantial evidence that limiting the length of the fifth, most southerly, dock to 75 feet would alleviate any adverse impacts sufficiently that the proposed activity is not contrary to the public interest. The record of this action shows competent substantial evidence that vessels using the Basin for
docking or mooring do not pose adverse impacts to safety and navigation. The ALJ recommended that the fifth finger pier be shortened to 75 feet in order to satisfy the Public Interest Test, or that the Proposed Permit be denied.
In light of the above determinations, the Proposed Permit and License, as modified by the ALJ's recommendation to limit the length of the fifth, most southerly, dock to 75 feet in length, would not be contrary to the public interest, would comply with the standards for issuance pursuant to Section 373.414, Florida Statutes, and Section 40E-4.302, Florida Administrative Code, and should be approved.
It is therefore ORDERED:
The attached Recommended Order (Exhibit "A") is adopted and incorporated by reference herein, subject to the changes granted in Exceptions of Broward County Nos. 1-4.
This Corrected Final Order does not constitute authorization of compliance with State Programmatic General Permit requirements. A request for this federal authorization should be directed to the U.S. Army Corps of Engineers (Jacksonville
District).
Any party to this order has the right to seek judicial review of the order under Section 120.68 of the Florida Statutes by the filing of a notice of appeal under Rules
9.110 and 9.190 of the Florida Rules of Appellate Procedure with the Clerk of the Broward County Environmental Protection and Growth Management Department in the Enforcement Administration Section, One N. University Drive, Suite 307, Plantation, FL 33324, 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 thirty (30) days from the date this order is filed with the clerk of the Department. DONE AND ORDERED this J.- day of May, 2011, in Broward County, Florida.
BROWARD COUNTY ENVIRONMENTAL PROTECTION AND GROWTH MANAGEMENT DEPARTMENT
cv THIACHAMBERS, Director Broward County Government Center 115 S. Andrews Avenue
Fort Lauderdale, Florida 33301
FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTM T CLERK, RECEIPT OF WHICH IS
Y KNOWLEDGED.
e:',I, .) I'
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Corrected Final Order has been sent by United States Postal Service to:
Glenn Smith, Esq.
Ruden, McClosky, Schuster & Russell, P.A. 200 East Broward Boulevard, 15th Floor Fort Lauderdale, FL 33301
Facsimile: (954) 333-4029
Larry A Zink, Esq.
ZINK & ZINK CO., L.P.A.
3711 Whipple Ave., NW Canton, OH 44718-2933
Facsimile: (330) 492-3956
William G. McCormick , Esq. Gray Robinson
Las Olas City Center, Suite 1850 401 East Las Olas Boulevard Fort Lauderdale, FL 33301 Fascimile: (954) 761-8112
Claudia Llado, Clerk
State of Florida, Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Facsimile (850) 921-6847
and by hand delivery to:
Michael C. Owens, Senior Assistant County Attorney Broward County Office of the County Attorney Governmental Center, Suite 423
115 South Andrews Avenue Fort Lauderdale, Florida 33301
this c2- day of May, 2011.
BROWARD COUNTY ENVIRONMENTAL PROTECTION AND GROWTH MANAGEMENT DEPARTMENT
on_
MEREDITH BRANNON
Natural Resource Specialist Ill
MCO/bjl
5/2/11
Corrected Final Order.docx
| Issue Date | Document | Summary |
|---|---|---|
| May 02, 2011 | Corrected Agency FO | |
| Apr. 28, 2011 | Agency Final Order | |
| Oct. 14, 2010 | Recommended Order | ERP to be issued by Broward County should be modified to shorten one finger pier in a marina basin in the interest of safety and navigation. |
