STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMENDED FINAL ORDER TO CONFORM TO APPELLATE COURT MANDATE

Respondent appealed the Final Order in this case issued on May 22, 2009, to the District Court of Appeal for the Fifth District of Florida. On May 6, 2011, the appellate court issued a per curium decision, affirming in part and reversing in part the Final Order. On August 1, 2011, the appellate court's Mandate was filed with the Division of Administrative Hearings ("DOAH"). The Mandate requires that the penalty for the violation of Count II of the Notice of Violation, Orders for Corrective Action, and Administrative Penalty be reduced from

$2,000 to $1,000. This Amended Final Order is issued to conform to the Mandate.

The final hearing in this case was held on March 27, 2009, by video teleconference, at sites in Tallahassee and Tampa,

Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jeffery C. Close, Esquire

Department of Environmental Protection The Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Paul V. Suppicich, Esquire

15310 Amberly Drive, Suite 250

Tampa, Florida 33647 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent Charles Dolby violated certain rules of the Department of Environmental Protection (Department) related to activities in wetlands in the Department’s Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (NOV); whether Respondent is liable for the administrative fines and investigative costs assessed by the Department; whether mitigation of the administrative fines is appropriate; and whether Respondent should be required to take the corrective action described in

the NOV.

PRELIMINARY STATEMENT

On or about October 27, 2008, the Department issued a three-count NOV against Respondent for un-permitted dredging and filling in wetlands. Respondent filed a petition for

administrative hearing and the Department referred the matter to DOAH.

At the hearing, the Department presented the testimony of Brian Brown. The Department’s Exhibits 1 through 23, 25 through 27, 30, and 31 were admitted into evidence. Respondent testified on his own behalf. Respondent’s Exhibits 1 through 5 were admitted into evidence.

A court reporter recorded the hearing, but a transcript was not prepared or filed with DOAH. The parties submitted

post-hearing writings which were carefully considered in the preparation of this Final Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 373 and 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62, that regulate activities in wetlands.

2. Respondent is the owner of the real property (Parcel ID #N29A012) located at Tract 12, County Road 652A, Bushnell, Sumter County, Florida (“the property”). Mr. Dolby has owned the property since June 9, 2005.

3. From February 2006 to June 2006, Respondent conducted activities on the property which he referred to as “clearing.”

   He did not have a permit from the Department to conduct the activities.

4. Count I of the NOV charges Respondent with violating Florida Administrative Code Rule 62-343.050(1), for dredging in wetlands without an environmental resource permit from the Department.

5. Count II of the NOV charges Respondent with violating Florida Administrative Code Rule 62-343.050(1) for filling in wetlands without an environmental resource permit from the Department.

6. The Department demonstrated by a preponderance of the evidence that wetlands exist on Respondent’s property and that

   .33 acres of the wetlands were dredged and .22 acres of the wetlands were filled.

7. Respondent did not present competent evidence to rebut the Department’s evidence of the existence of wetlands on his property. Instead, Respondent presented evidence about unusually heavy rainfall in 2005 and about a “plugged” culvert under the road near his property, presumably to prove that the wet conditions on his property were caused by unusual flooding events and were temporary.

8. The conditions that created a particular wetland are usually not relevant to the determination of whether a permit is required for dredging and filling activities in the wetland.

   Moreover, the more persuasive evidence presented in this case shows that the wetlands on Respondent’s property are part of a larger wetland system that has existed for many years. For example, the hydric soils in the wetlands on Respondent’s property are the result of long-term natural processes, not an ephemeral condition.

9. Respondent did not claim or present evidence which showed that his activities on the property qualified for an exemption from the requirement to obtain a permit for activities in wetlands.

10. Respondent testified that he was told by an employee of Sumter County that he did not need a permit to clear his property. Respondent did not make clear whether the County employee said that the County did not require a permit for clearing, or whether the County employee said the Department did not require a permit for clearing. It was probably the former. Furthermore, Respondent did not say that he told the County employee that he was going to be clearing in wetlands.

11. The evidence presented by Respondent is insufficient to demonstrate that Respondent’s ignorance of the Department’s permitting rules was reasonable or that the circumstances justify a reduction of the penalty.

12. Count III of the NOV charges Respondent with liability for the Department’s investigative costs. The Department’s

    employee, Brian Brown, testified that he spent at least 40 hours on investigation and enforcement tasks, during which time he was paid approximately $22.50 per hour. Therefore, the $500 sought by the Department in Count III of the NOV is less than the actual cost incurred by the Department.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this case pursuant to sections 120.569, 120.57(1), and 403.121(2), Florida Statutes (2008).

14. If the Department has reason to believe a violation of the laws that it administers has occurred, it may institute an administrative proceeding to establish liability, to recover damages, and to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action. See § 403.121(2)(a) and (b), Fla. Stat.

15. The Department may proceed administratively in cases where it seeks administrative penalties that do not exceed

    $10,000. See § 403.121(2)(b), Fla. Stat.

    
    

16. The Department has the burden to prove by a preponderance of the evidence that Respondent violated the law as alleged in the NOV. See § 403.121(2)(d), Fla. Stat.

17. In administrative enforcement cases where penalties are sought, the Administrative Law Judge is to issue a final

    order on all matters, including the imposition of administrative penalties. See § 403.121(2)(d), Fla. Stat.

18. Florida Administrative Code Rule 62-343.050 provides that “a noticed general, standard general, or individual environmental resource permit must be obtained from the Department . . . prior to . . . dredging or filling in, on, or over wetlands and other surface waters. The Department proved by a preponderance of the evidence that Respondent dredged and filled in wetlands without a permit from the Department.

19. Section 403.121(3), Florida Statutes, provides a range of penalties that “must be calculated” for certain types of violations. For the violations addressed in Counts I and II (dredging and filling without a permit in wetlands greater than one-quarter acre, but less than half acre, in size), section 403.121(3)(c), requires a penalty of $3,000.

20. Evidence may be received in mitigation and may reduce a penalty up to 50 percent for mitigating factors, including good faith efforts to comply prior to or after discovery of the violations by the Department. See § 403.121(10), Fla. Stat.

21. Good cause was not shown to reduce the penalties.

    
    

22. In Count III of the NOV, the Department seeks to recover $500 of investigative costs incurred in this enforcement action. These costs were not disputed by Respondent.

23. The Department also seeks to require Respondent to undertake corrective actions to restore the wetland area that he disturbed. Restoration of the disturbed wetland is appropriate and should be required. However, some restoration and monitoring requirements that the Department sought to impose in its NOV have been simplified in this Final Order because the need for the provisions in their original form was not demonstrated by the Department at the final hearing.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Within 30 days of the effective date of this Order, Respondent shall pay $3,000 to the Department for the administrative penalties assessed in Counts I and II of the NOV and $500 for the Department’s investigative costs assessed under Count III of the NOV. Payment shall be made by cashier’s check or money order payable to the “State of Florida Department of Environmental Protection” and shall include thereon the OGC Case No. 07-1412 and the notation “Ecosystem Management and Restoration Trust Fund.” The payment shall be sent to the Florida Department of Environmental Protection, Attn: David Brian Brown, 13051 N. Telecom Parkway, Temple Terrace, Florida 33637.

2. Within 30 days of the date of this Final Order, Respondent shall attend an on-site, pre-construction meeting with a representative of the Department to review the work required by this Final Order. Before the conclusion of the meeting, the Department shall flag the area to be restored.

3. Before any earthmoving, Respondent shall install and maintain erosion and sedimentation control devices.

4. No later than 45 days from the effective date of this Order, Respondent shall remove all Water Primrose (Lugwigia peruviana), Carolina Willow (Salix caroliniana Michx.), Cattail (Typha spp.), Brazilian Pepper (Schinus terebinthifolius Raddi) and other exotic and/or nuisance vegetation from the restoration area.

5. Within 60 days of the effective date of this Final Order, Respondent shall re-grade the restoration area to pre- disturbance elevations.

   1. The only material to be used in the re-grading of the

      
      

      0.33 acre dredged area shall be the 0.22 acres of side-cast material. If there is an insufficient amount of side-cast material to achieve the pre-disturbance elevations, Respondent shall use additional material approved by the Department.

   2. To assure that the re-grading of the restoration area achieves pre-disturbance elevations, Respondent shall have a survey prepared to establish several spot elevations 10 feet

      into the adjacent, unaltered wetlands surrounding the restoration area, and several point elevations within the restoration area.

   3. Respondent shall stabilize all side slopes to prevent erosion, siltation, or turbid runoff into waters of the State.

   4. All re-grading or filling of the restoration area shall be conducted so as not to affect wetlands and surface waters outside the restoration area.

6. Respondent shall not begin re-planting of the restoration area until the Department has approved the re- grading.

7. Respondent shall plant (in any combination) 100 Red Maples (Acer rubrum) and Dahoon Holly (Ilex cassine L.) and 215 Saw-grass (Cladium jamaicense) throughout the approximate 0.55- acre of restored wetlands. The Red Maples and Dahoon Hollys shall be planted on 20 foot-centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery-grown stock. The sawgrass shall be planted on 10 foot-centers throughout the restoration area and shall be 1-gallon, well-rooted, nursery- grown stock.

8. Immediately upon completion of the re-planting, Respondent shall notify the Department so that an inspection of the work can be made.

9. Prior to the submittal of each monitoring report required in paragraph 10, below, Respondent shall remove Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana), Carolina Willow (Salix caroliniana Michx.) and other nuisance species from the restored wetland area. All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and soils.

10. Respondent shall submit an initial monitoring report within 30 days of the completion of the re-planting of the restoration area and shall submit subsequent monitoring reports for five years following completion of the replanting: semi- annually for the first year and annually for years two through five. The monitoring reports shall include the following information:

    1. Respondent’s name and address, and OGC Case No. 07-

       
       

       1412;

       
       

    2. The date of the investigation upon which the report is

       
       

       based;

       
       

    3. Color photographs taken from fixed reference points that will be used for all reports, including photographs of the canopy of the planted trees;

    4. The percentage of planted trees within the restoration area that have survived;

    5. The average height of the planted trees;

       
       

    6. The percentage of planted herbaceous species within the restoration area that have survived; and

    7. A written summary describing the success of the restoration area, including any steps needed or taken to promote future success, such as re-planting or the removal of nuisance and exotic species, and noting water levels observed within the restoration area.

11. Respondent’s restoration obligations under this Final Order shall continue for the five-year monitoring period and thereafter until the restoration area has achieved (continuously for 12 months without re-plantings and removal of exotic and nuisance species) a minimum of 80 percent survival, an average tree height of at least ten feet; vigorous growth consistent with the species; total coverage of over 80 percent within the restoration area by planted and/or naturally recruiting, native, “non nuisance”, wetland species as defined in Chapter 62-340 Florida Administrative Code; and less than 10 percent coverage by exotic and nuisance species.

12. If the Department notifies Respondent that, based on visual inspection or review of the monitoring reports, the restoration area is not meeting the above-specified success criteria, Respondent shall submit an alternative restoration plan to the Southwest District Office within 30 days.

13. The Department’s determination that an alternative restoration plan is needed, or that an alternative restoration plan submitted by Respondent is inadequate, shall constitute agency action subject to administrative challenge pursuant to Chapter 120, Florida Statutes.

14. If the property is sold during the monitoring period, Respondent shall remain obligated to perform the monitoring. Before or at the closing of the sale of the property, Respondent shall inform the purchaser of Respondent’s obligations under this Final Order and shall deliver a copy of the Final Order to the purchaser. Respondent shall also notify the Department in writing of the sale of the property within 15 days of the closing.

DONE AND ORDERED this 2nd day of August, 2011, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2011.

COPIES FURNISHED:

Jeffery Curry Close, Esquire Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399

Charles Dolby

6 Shumard Court E Homosassa, Florida 34446

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Docket for Case No: 08-006172EF

Orders for Case No: 08-006172EF