Findings Of Fact Because of a 1984 Thanksgiving Day storm which inflicted damage in coastal areas, Barry Manson-Hing, an area engineer employed by the Department, issued emergency coastal construction permits from a temporary office in the Vero Beach Administration Building. On December 3, 1984, Respondent sought an emergency permit to allow him to place sand and sand-filled bags on his coastal property at 3755 Ocean Drive, Vero Beach, Florida. Respondent asked Mr. Manson-Hing if he could use sand from the beach to restore eroded areas. Mr. Manson-Hing said he could not, and told him that sand would have to be obtained from an upland source. Respondent replied that he had an available source of upland sand and would haul it by truck to the beach site. He also mentioned that he would remove an existing pine tree to allow vehicular access. On the next day, December 4, 1984, Mr. Manson-Hing issued an emergency coastal construction permit, #1R-127E, to Respondent. The permit allowed Respondent to place 1,500 cubic yards of sand fill material to restore eroded beach and dune areas at the site, and also permitted him to temporarily place sand-filled bags on filter cloth. In capital letters, the permit warned, "SCRAPING OF THE BEACH IS PROHIBITED." (Dept. Exhibit 4) On December 5, 1984, Lt. Raymond Barker of the Vero Beach Police Department, observed beach scraping activities being conducted on Respondent's coastal property. Respondent was present on the site. Beach sand seaward of the Coastal Construction Control Line for Indian River County had been scraped and deposited at the face of the sand dune. The removal of the sand created depressions in the beach area seaward of the Coastal Construction Control Line. Lt. Barker ordered Respondent to cease the activity until it could be determined he had the required authorization. Respondent complied with Lt. Barker's order. The scraping of the beach and removal of sand below the coastal construction control line was accomplished without a permit from the Department. On July 17, 1985, the Department entered its "Final Order" assessing Respondent a $500 fine for unauthorized coastal construction activities in violation of Section 161.054, Florida Statutes (1985). Respondent requested a hearing; resulting in this proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department assess, impose, and collect an administrative fine of $500, to be paid within 30 days of final agency action. DONE AND ORDERED this 20th day of June, 1986, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings the 20th day of June, 1986.
The Issue The issue for determination is whether Petitioners are eligible for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida.
Findings Of Fact On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an application to the Florida Department of Environmental Protection (Respondent) for a permit to perform construction on their property seaward of the Broward County Coastal Construction Control Line. Respondent deemed their application complete on April 18, 1994. Petitioners proposed construction will be seaward of the Coastal Construction Control Line. The proposed construction will occur on two adjacent lots in Broward County. Petitioner Leto is the owner of one of the lots described as Lot 19, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioners Meyer and Anderes are the owners of the other lot described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward County. Petitioner Leto purchased his lot in September 1992 and Petitioners Meyer and Anderes purchased their lot in March 1993. The lots were platted in or around the 1920's. Both lots are seaward of the seasonal high water line, on a sandy beach with no frontal dune structure. They are bordered by the Atlantic Ocean on the eastern most side and by a roadway (Surf Road) which is immediately adjacent to the lots on the western most side and landward of the lots. Approximately 200 feet north of the lots is an existing structure and approximately 800 feet south of this first existing structure is another existing structure. Petitioners topographical survey, which was submitted to Respondent in December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore parallel direction and 80 feet in a shore normal direction, i.e., perpendicular to the shoreline. The proposed structure will be located directly on the sandy beach. The City of Hollywood, Florida has granted Petitioners a variance. Further, the proposed construction complies with the rules, zoning regulations, and ordinances of the City of Hollywood. Petitioners' application requests a permit for the construction of a single-family residence on the lots, which will house two families. However, the proposed construction is for a duplex, not a single-family residence. Petitioners are willing, and agreeable, to changing the design of the proposed structure to comply with Respondent's specifications for a single- family residence. Additionally, the proposed construction includes a riprap which will also be located on the sandy beach. A riprap is typically used for protective armoring. No structure presently exists for the riprap to protect. Furthermore, the riprap proposed by Petitioners is not adequately designed as a coastal protection structure, and if the proposed single-family residence is modified in accordance with Respondent's specifications, the proposed modified single-family residence would not be eligible for coastal armoring. The riprap structure is not an integral part of the structural design. Petitioners are willing, and agreeable, to eliminating the riprap structure. No other issues exist as to the structural integrity of the design of the proposed project. The lots on which the proposed structure will be located are a part of the beach-dune system. The natural function of the beach provides protection to upland property. The lots on which the proposed structure will be located are subject to normal storm-induced erosion. Tide and wave forces will impact the proposed structure during storms of minor intensity, including five-year storms. The proposed structure will induce greater erosion on the lots as a result of scour due to the interaction of the storm waves and currents with the proposed structure. During the storm, the normal storm-induced erosion combined with the scour erosion will form a breach or depression in the subject property. In turn, the upland property will be exposed to greater tide and wave forces, increasing the risk of erosion and damage to the upland property. The subject lots and surrounding properties have been subjected to unnatural forces which have added to the erosion. The Port Everglades inlet has inhibited the natural downdrift of sand. The City of Hollywood's beach maintenance division has been regularly pushing sand seaward and in the process, breaking down natural forming cliffs. Even though these unnatural forces are capable of being eliminated, the normal storm-induced erosion and the scour erosion would still exists. The existing developed structures to the north and south of the subject lots appear to create a reasonably uniform line of construction. However, the developed structures have been unduly affected by erosion. The proposed structure will be located within this line of construction. During a major storm along the shoreline, waves remove sand from the beach and dune area and deposit the sand in an offshore bar. After the major storm, a recovery of the beach and dunes takes place. Normal wave activity carries the sand from the offshore bar back to the beach, and the sand is then carried landward by winds and is caught and trapped by dune vegetation; thereby reforming a dune. Constructing the structure as proposed will not locate the structure a sufficient distance landward of the beach-dune system. As a result, the proposed structure will interrupt natural fluctuation in the shoreline and not preserve the natural recovery following the storm-induced erosion. The cumulative impact on the beach-dune system by the proposed structure would be severe, i.e., the effects on the beach-dune system by repeating this same proposed structure along the subject shoreline would be severe. There would be structure-induced scour and general degradation of the beach-dune system. Additionally, the recovery potential of the subject area following a major storm event would be threatened. Over the years, the beach of the subject property has been subjected to a re-nourishment project consisting of pumping sand from offshore. This method of re-nourishment may have negatively impacted the sand bar system immediately offshore affecting the hindrance of erosion. A sand bar system immediately offshore softens wave action on the shore and aids in inhibiting erosion. The proposed structure will hinder lateral public beach access. Currently, lateral beach access exists along the beach between the existing northern developed property and the existing southern developed property. The proposed structure will be located on the sandy beach, and the seaward face of the proposed structure will be within approximately one foot of the wet sand beach. At times, the proposed structure will be surrounded by water on at least three sides. No alternative beach access would be available. The proposed riprap will also be located on the sandy beach and will further hinder lateral public beach access. 2/ Loggerhead turtles, which are nesting marine turtles, engage in nesting activities along the stretch of beach where the subject property is located. They are a threatened species, i. e., close to extension. Although they do not nest every year, the turtles usually provide several nests in a single year. Typically, one hundred eggs comprise a turtle nest. In 1992, approximately 2,221 loggerhead turtle nests were in Broward County, with 22 of these nests located within 1,000 feet of the subject property. Turtle nesting efforts have been observed in the beach area of the subject property. One nest was found within the subject property. Structures located on the sandy beach interfere with marine turtle nesting habits. If female turtles make contact with the structures, they often abort nesting attempts, which results in false crawls. Repetitive false crawls harms successful nesting, which may cause malformed egg chambers, impacting the successful incubation of the nest. Also, interaction with a structure can cause injury or death to a female turtle attempting to nest. Additionally, urbanization activity and lighting on the beach deter nesting. A loss of marine turtle nesting habitat will result if the proposed structure is constructed. Also, armoring, such as the proposed riprap, can result in nests being placed more seaward. 3/ Consequently, the nests would be threatened with tidal inundation, which would affect the mortality of the nest itself. As one nest has been located within the subject property, at least one nest or crawl per year would be affected by the proposed structure. Within 30 years, the proposed structure will be seaward of the seasonal high water line. The location of the proposed structure is seaward of the 30-year erosion projection for the subject property. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show that its interest is different than the public at large and that it has substantial interest separate and apart from the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of Paul Leto, Richard Meyer, and Berta Anderes for a permit, pursuant to Section 161.053, Florida Statutes, for construction seaward of the Coastal Construction Control Line in Broward County, Florida. DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1996.
The Issue Whether a permit should be granted for an at-grade crossing over the Florida East Coast Line Railroad at Mile Post 175.57.
Findings Of Fact 1. The City of Rockledge, Florida is constructing a road in the incorporated limits of the city, known as Rovac Parkway. The road has not been completed, but when completed, it will consist of two ten foot driving lanes running east and two ten foot driving lanes running west with a twelve foot median strip and fourteen foot shoulders. This road-is scheduled to intersect the Florida East Coast Line Railroad at Mile Post 175.57, and would cross the railroad with the same given dimensions as described above. After crossing the railroad, the Rovac Parkway would intersect with U.S.1, also known as State Road There is pending with the State of Florida, Department of Transportation, an application for driveway permit from the Rovac Parkway into U.S.1 (State Road 5), and a copy of the application for permit is found in the City's Exhibit #4 entered into evidence in the hearing. The area for which the application for at-grade crossing pertains is zoned R-2. In the general area of the proposed crossing it is intended that a industrial plant be built by Rovac, Inc., a firm from Maitland, Florida. The Florida East Coast Line Railroad which runs through the City of Rockledge is a single track line which runs roughly north and south and 66 percent of the population of the City of Rockledge, is located west of the Florida East Coast Line Railroad, with the remaining 34 percent found east of the Florida East Coast Line Railroad. The population in the City of Rockledge at the time of the hearing was 11,467 people. If the subject railroad crossing was open and the Rovac Parkway completed, approximately 35 percent of the 66 percent of the population lying west of the Florida East Coast Line Railroad would be using the at-grade crossing. The nearest at-grade crossing with signalization is found 1/2 mile north of the proposed crossing at Barton Road, and the implementation of an at-grade crossing at the subject location would releave the traffic at Barton Road and promote safe crossing of the Florida East Coast Line Railroad found in the City of Rockledge. Immediately north of the proposed at-grade crossing and identified as Mile Post 175.49 is an unprotected at-grade crossing. This crossing services a roofing company which services the public and also services a number of homes in the immediate vicinity of the existing crossing. If the new at-grade crossing at Mile Post 175.57 were permitted, the people who utilize the crossing at Mile Post 175.49 would be serviced by the new crossing. This service would be affected by an extension of an existing road known as Edwards Drive, from its present location to intersect with Rovac Parkway at right angles immediately west of the intersection of the proposed crossing with the Florida East Coast Line Railroad. The land that is necessary for the extension of Edwards Drive has been deeded to the City of Rockledge but has not been dedicated, A and public hearings have been held on the question of the service of those persons in the vicinity at the present at-grade crossing, in addition to public hearings on the extension of Edwards Drive. The location of the proposed crossing and the existing crossing at Mile Post 175.49, and their relationship to other landmarks in the area can be seen through the City's Exhibit #13, admitted into evidence. At the time of hearing, eight north and south bound freight trains and two local freight trains operated in the vicinity of the present crossing at Nile Post 175.49 and the contemplated crossing at Mile Post 175.57. The time schedule for the northbound freight trains is 3:00 A.M., 4:00 A.M., 5:00 A.M., 9:00 A.M., 2:00 P.M. 3:00 P.M., 4:00 P.M. and 7:00 P.M. The time schedule for the south bound freight trains is 10:45 A.M., 3:45 P.M., 7:00 P.M., 8:00 P.M., 9:00 P.M., 10:45 P.M., 11:45 P.M. and 6:30 A.M. The two local freight trains run at approximately 4:00 A.M. and 12:00 noon. The 7 speed limit in the area of the crossing at Mile Post 175.49 and the proposed crossing at Mile Post 175.57 is 60 fPH for the railroad. There is a left curve approximately 1,550 feet south of the proposed crossing. All parties to the hearing feel that it is necessary to have signalization at the proposed at-grade crossing. The witness for the City acknowledged the need for such an arrangement. The spokesman for the Railroad felt that the crossing should be controlled by an automatic system with flashing lights, ringing bells, and gates, which was train activated, and the witness of the Department of Transportation felt that the safety equipment at the proposed at-grade crossing should be a Type IV, with cantilevered flashing lights, ringing bells and gates. The same witnesses stressed that the existing crossing at Mile Post 175.49 was not signalized and therefore was much more dangerous than a signalized crossing, such as the proposed crossing at Mile Post 175.57. Exhibits which were offered in the course of the hearing which address the propriety of opening a crossing at Mile Post 175.57 and closing the crossing at Mile Post 175.49 were as follows: Exhibit #1, by the City, is a map of the City of Rockledge; Exhibit #2, by the City, is a comprehensive land use plan of the City; Exhibit #3, by the City, is a resolution of the City Council, City of Rockledge, proposing the opening of the crossing at Mile Post 175.57; Exhibit #6, by the City, a traffic count at the Barton crossing; Exhibit #11, by the City, a resolution of the Brevard Economic Development Commission concerning the impact of such a development; and Exhibit #12, by the City, a drawing of the extension of Edwards Drive and the construction of the Rovac Parkway, together with the present crossing and the proposed crossing.
Recommendation It is recommended that the permit be granted, to open the subject crossing, utilizing safety equipment of a type addressed in the Conclusions of Law section of this Recommended Order. DONE and ENTERED this 2nd day of July, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter C. Sheppard, Esquire City Attorney, for Rockledge 115 Harrison Street Cocoa, Florida 32922 Charles B. Evans, Esquire Florida East Coast Line Railroad One Malaga Street St. Augustine, Florida 32084 Philip Bennett, Esquire Office of Legal Operation Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32304
The Issue The issue in this case is whether a beach house petitioners plan to build in south Walton County was already under construction, within the meaning of Section 161.053(7), Florida Statutes (1981) and Rule 16B-33.04(1), Florida Administrative Code, at the time the current coastal construction control line took effect there.
Findings Of Fact In October of 1982, the petitioners acquired a lot in south Walton County, on the north shore of the Gulf of Mexico. Even before the purchase, Mr. Wiese had been in touch with respondent's personnel, who apprised him of the imminence of the adoption of the new (now current) coastal construction control line, at that time already proposed for Walton County. The former coastal construction control line was considerably seaward of the current line, which became effective on December 29, 1982. Petitioners, who have built some seven houses, drew plans for a house to be built on their Walton County lot one foot landward of the old coastal construction control line. They applied for and obtained the necessary county building permit. They contracted for grading on site, which took place on November 27, 1982. In the course of this work, the landward face of the sand dune was disturbed and petitioners realized that, if they were to build so close to the water, a wall or something like a wall would have to be erected and buttressed to keep the sand dune from migrating under or into their beach house. They determined that the plans were inadequate as drawn. Mr. Wiese nevertheless arranged for one Al Christopher to bring two poles to the site and place one of them upright in the sand. When asked at hearing how long the two poles Mr. Christopher delivered to the site were, Mr. Wiese said he did not know. After Mr. Christopher began, petitioners did not ask him to desist either with bringing pilings to the site or with placing them in the ground. Mr. Christopher evidently did what he was asked to do, before he ever began working with the poles. Before the single pile was placed, batter boards were used to locate the perimeters planned for the building. Batter boards are temporary markers which are removed once the foundation is in place. In constructing piling foundations for beach houses along the gulf coast, in this part of Florida if not elsewhere, the ordinary sequence is to bring all foundation piles to the site before bringing the equipment necessary to install all the piles at once. This makes for efficient use of expensive machinery, and is virtually always done. One of the Wieses' neighbors, fearing that the new coastal construction control line would take effect last fall arranged for a single pile to be driven, but his project was well underway by the time the new coastal construction control line did in fact take effect. As late as March of this year, Mr. Wiese checked with a Texas supplier to see if foundation piles would be available for the project. The plans drawn before the grading of November 27, 1982, called for a foundation of 37 piles, each of which was to be 45 feet long. No horizontal members nor bracing of any kind was contemplated for the foundation. The foundation piles were to be put so close together that it would have been impractical to bring heavy equipment in to do the grading after they were in place. The idea in leveling the ground was to prepare it so a concrete slab could be poured to serve as a parking surface underneath the beach house. Under both the plans originally drawn and the plans under which petitioners now hope to proceed the parking surface itself is not expected to have a structural function, Mr. Wiese's testimony to the contrary notwithstanding. Once petitioners were persuaded that the project needed "reengineering," they diligently sought out expert assistance and new foundation plans were eventually drawn to their satisfaction. Petitioners' efforts took place on a regular, if not a daily basis, but consisted in large part of finding the right people for the "reengineering" job. The plans which petitioners propose to use were stamped with the final engineer's seal on March 3, 1983, more than two months after the current coastal construction control line took effect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioners' beach house project grandfathered status, and apply the coastal construction control line adopted for Walton County on December 29, 1982, in any agency action regarding the project. DONE and ENTERED this 22nd day of August, 1983, Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August 1983. COPIES FURNISHED: Joseph C. Jacobs, Esquire John C. Pelham, Esquire and Melissa Fletcher Allaman, Esquire ERVIN, VARN, ODOM & KITCHEN Post Office Box 1770 Tallahassee, Florida 32322-1170 Deborah A. Getzoff, Esquire Suite 1003 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case at Trenton, Florida on July 8, 1980.
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue Whether a permit should be granted for a public-at-grade rail/highway crossing by new rail construction 50 feet north of Seaboard Coast Line MP SVC 855, Ft. Green Springs Road, Hardee County, Florida, Section 0600-6605, State Road 663.
Findings Of Fact After the hearing was called to order the parties called for a recess and after the recess the following stipulation was agreed to: There is a need for the subject crossing to serve the applicant's mining operation. The new rail construction is needed to move rock from the mine to applicant's other plants. It was further agreed that the applicant, C. F. Mining Corporation, will Provide the installation of side mounted flashing lights and ringing bells, and advance warning disks with flashers and pavement markings as outlined in Part 8 of the Manual of Traffic Control Devices. The applicant, Hardee County, as a part of its overall road program will police the crossing and notify the applicant's mining corporation of any defective operation in the signalization. The permit would provide a way for an industrial spurline to come off the main track of Seaboard Coast Line Railroad across Fort Green Springs Road into the C. F. Mining Corporation plant. The Seaboard Coast Line Railroad did not appear at the hearing and made no objection to the granting of the permit. The need for the crossing has been established and proper precautions for public safety are planned.
Recommendation Grant the permit as Requested. DONE and ORDERED this 22nd day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Philip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 David Ashby, Chief Engineer C. F. Mining Corporation Post Office Box 1849 Bartow, Florida 33830 Eugene R. Buzard, Esquire Seaboard Coast Line Railroad Company 500 Water Street Jacksonville, Florida 32202
Findings Of Fact Marvel O. Warren and his brother Dan own a parcel of beachfront property in Walton County, south of State Road 30A (SR30A) near Seagrove Beach. Like Mr. Warren, the other intervenors own beachfront in the area, which lies in County Commission District Five. In 1954, before the Warrens built their house landward of the dunes, no road ran toward the beach from SR30A. Construction traffic to the house site beat down a path, however. In Walton County, each county commissioner is responsible, within the district he represents, for road maintenance and, on existing county right-of- way, for construction of new roads. DNR's Exhibit No., 7; Testimony of Owens. Expenditures in excess of $500 for materials beyond what the county has stockpiled require approval by the full commission, however. Testimony of Owens. FIRST ROAD BUILT Albert Gavin of Freeport was county commissioner for District Five when, in 1958 or 1959, he caused a red clay road to be built from SR30A southerly along the eastern edge of the Warren property over sand dunes and onto the beach to within 20 or 30 feet of the water's edge. During Mr. Gavin's tenure, the county owned a borrow pit and kept no records of how much clay was placed where. (No records of the quantity of clay deposited on the beach at any time were offered in evidence at the hearing.) Fishermen used the road to launch boats into the Gulf of Mexico. Except for any portion that may have extended onto sovereignty land, the road lay on county-owned right-of-way. UPLAND SEGMENT PERMANENT The clay road landward of the sand dunes leading along the eastern edge of the Warren property to SR30A (the upland road) has been consistently maintained and in existence since it was originally built. The upland road ends at the bluff line, which is practically congruent with the coastal construction control line at that point on the coast. DNR's Exhibit No. 4; Testimony of Hill. At some time between 1960 and 1969, also landward of the subsequently established coastal construction control line, a clay parking lot was built adjacent to the upland road. BEACH SEGMENTS EVANESCENT Whenever clay has been placed on the beach, seaward of the crest of the landwardmost sand dune, the gulf has washed it away. Many clay roads at the site did not last the summer. Virtually no clay deposit has lasted longer than a full year. One attempt after another to construct a clay road seaward of the sand dunes (the beach segment) has failed. Witnesses testified that the sun bleached the red clay and that wind covered it with white sand but wave action has been the clay's principal nemesis. When Harold C. Lucas was commissioner for District Five from March, 1968, to January, 1969, no clay was deposited on the beach and there was no beach segment. Except for three months in 1975 when Van Ness R. Butler, Jr., of Grayton Beach, served as District Five's county commissioner, Conley Martin of Portland represented the district from 1969 to 1976. As county commissioners, both of these men directed clay to be placed on the beach at various times. COASTAL CONSTRUCTION CONTROL LINE ESTABLISHED A beach segment was in existence at the time the coastal construction control line was established, and recorded, on June 4, 1975, although the beach segment that then existed went straight from the foot of the sand dune toward the edge of the gulf, instead of veering east like the new; longer beach segment built last September. THEN EXISTING ROAD DESTROYED, REPLACED In September of 1975, Hurricane Eloise removed not only the beach segment of the road but much of the beach, including the dunes themselves. As road foreman for District Five at the time, Robert N. Budreau used a road grader and other equipment to fill a large hole between the Warren house and the sand dune and to cover over broken toilets and other debris with a mixture of sand and yellow clay. After the filling, a roadway was constructed with the same sand and clay mix, extending about 25 feet seaward of the dunes along a line perpendicular to the gulf shore. REPLACEMENT ROAD RECLAIMED BY ELEMENTS In 1976, Freddie M. Bishop was elected county commissioner for District Five. After the beach segment built by Mr. Budreau washed out, at least one constituent, Gene Wesley, asked Mr. Bishop to replace it, but Mr. Bishop broke with sisyphean tradition, and declined to place any clay on the beach, or otherwise attempt to reconstruct or replace the beach segment. By the time petitioner McLean succeeded Bishop as commissioner for District Five, the beach segment had been completely obliterated. The end of the upland road continued, however, to be one of some half-dozen points of access for four-wheel drive vehicles to Walton County's gulf beaches. Commissioner Bishop did cause two truckloads of oyster shells to be deposited on the "hump" of the landward sea dune, on or near the bluff line. NEW BEACH SEGMENT In response to constituents' requests, Mr. McLean ordered a new road built. He caused clay and gravel to be placed and compacted seaward of the coastal construction control line by county workmen and machinery, including some "borrowed" for the purpose from colleagues on the Walton County Commission. Built without a DNR permit in September of 1981, this new beach segment extends 180 feet seaward of the coastal construction control line and takes an unprecedented veer to the east. The only preexisting foundation for the new beach segment was the beach itself. Like Commissioner Anderson, Commissioner W. F. Miles "lent" county trucks he had charge of to respondent McLean, but Mr. Miles did not know in advance that Mr. McLean intended to use them to build a road on the beach. Commissioners Matthews, Miles, and Owens were aware of the existence of the coastal construction control line in Walton County and, in a general way, of DNR permitting requirements and procedures, including the fact that the County Commission itself acts on certain coastal construction applications. Commissioners Anderson and McLean did not testify on these matters. DNR has issued no permit for anything like the new beach segment at any time since the coastal construction control line wad established. DNR has no record of any inquiry concerning the new beach segment by or on behalf of petitioners McLean or Walton County, before the new beach segment was built. There was no showing that Mr. McLean sought legal advice before ordering construction of the new beach segment. Paragraphs 1 through 8 of DNR's "Final Order," as amended at the final hearing and set forth above, have been established by stipulation of the parties. The hearing officer has had the benefit of posthearing submissions, including proposed findings of fact, filed by all parties. Proposed findings have been adopted, in substance, where relevant, except when unsupported by appropriate evidence.
Recommendation Upon consideration of the following, it is RECOMMENDED: That DNR order petitioner Walton County to remove the new beach segment seaward of the Walton County Coastal Construction Control Line within 30 days of entry of a final order. That DNR remove the new beach segment seaward of the Walton County Coastal Construction Control Line itself, in the event of petitioner Walton County's noncompliance with the final order; and take steps to recover the cost from petitioner Walton County. That DNR impose no civil or administrative fine against petitioner W. L. "Billy" McLean. DONE AND ENTERED this 30th day of July, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1982. COPIES FURNISHED: George Ralph Miller, Esquire Post Office Box 687 DeFuniak Springs, Florida 32433 W. Dennis Brannon, Esquire Post Office Box 1503 Fort Walton Beach, Florida 32549 Deborah A. Getzoff, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 M. Stephen Turner, Esquire Post Office Drawer 591 Tallahassee, Florida 32303 Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue Whether permits for two public at-grade railroad crossings should be granted.
Findings Of Fact By application the Agrico Chemical Company seeks permits to open two public at-grade railroad crossings by constructing a spur track between the Seaboard Coastline Railroad and Agrico Railroad beginning 1,868 feet south of Seaboard Coastline Mile Post SVC 851 at Agrock, Florida. The application involves opening two public at-grade rail highway crossings by new rail line construction. The local popular name of the road is Fort Green Road and Payne Creek Road. Two tracks were constructed less than two years ago so that the Seaboard Coastline Railroad could come off their main line and come into Agrico and pick up loaded or unloaded cars for transportation to the south, north and west. Agrico now desires to construct a track which more directly ties into what they term their Payne Creek trackage to the southeast. The new crossings would come straight across the Seaboard Coastline mainline into the Fort Green trackage. Agrico would have to spend less time on Seaboard Coastline trackage and the plan is to erect electric signal crossings whereas there are no electric signal crossings in the area at the present time. Such signalization would render the crossings less hazardous. The Petitioner Agrico will pay for the signalization at both crossings. Signalization consists of bells and signal lights. The Seaboard Coastline Railroad will maintain the crossings and signalization at the expense of the Petitioner Agrico. There are twelve trains per day. The Respondent Seaboard Coastline Railroad was not represented at the hearing, but a letter was introduced stating that "Seaboard Coastline will indicate no objections to these crossings when the appropriate public hearing is scheduled". The Respondent Department of Transportation reviewed the subject application and expressed the desire of the district railroad committee that Agrico Chemical Company pay for the installation of flashing lights and that the installation would conform to the manual on uniform traffic control devices pertaining to signalized railroad crossings. It also stated that in the interest of good safety practices, no buildings should be constructed or plantings made that would prevent good sight distance at the crossing. Additionally, the Respondent Department of Transportation suggested that the railroad crossings be maintained by "other than the Department of Transportation". The Hearing Officer further finds: The application for new railroad trackage is in the interest of the Petitioner Agrico Chemical Company and is in the interest of the public using the two railroad crossings. Signalization as planned will increase the safety of vehicular traffic.
The Issue Whether Respondent, Department of Financial Services, Division of Workers' Compensation (Department or Respondent), should pay Petitioner, Gulf Coast Development Service, Inc.'s (Petitioner or Gulf Coast Development), attorney's fees and costs under section 57.111, Florida Statutes (2012),1/ for initiating Division of Administrative Hearings (DOAH) Case No. 13-0798.
Findings Of Fact The parties stipulated to the following facts set forth in this paragraph: The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Petitioner, a Florida corporation, was engaged in the Florida construction industry on February 12, 2013. On February 12, 2013, Leida Perez, workers' compensation compliance investigator for the Department (Investigator Perez), commenced an investigation at 577 Gulfshore Boulevard, Naples, Florida 34102 (job site), to determine whether the individuals performing construction industry work at the job site were compliant with the workers' compensation insurance coverage requirements of chapter 440, Florida Statutes. Quang Dinh is the owner and corporate officer of Gulf Coast Development. The Department issued a Stop-Work Order and Order of Penalty Assessment to Petitioner on February 12, 2013. The Department served a Request for Production of Business Records for Penalty Assessment Calculation to Petitioner on February 12, 2013. The calculations and the methodology applied by the Department's penalty auditor in the Amended Order of Penalty Assessment that was issued to Petitioner by the Department on February 27, 2013, and revoked on May 3, 2013, are not in dispute. Petitioner does not owe any Amended Order of Penalty Assessment to the Department. Bob Simat, drywall supervisor for Advantage Plastering and Finish Carpentry, contacted Gilberto Zepeda directly to perform the drywall operations at the job site. Mr. Simat was under the impression that Mr. Zepeda and his brother both worked for Gulf Coast Development. Discovery in this matter concluded on April 29, 2013, when the Department received check images from Petitioner's bank account. The Department issued and served an Order Releasing Stop-Work Order (Revocation) to Petitioner on May 3, 2013. Petitioner is a bona fide "small business" and incurred legal fees and costs for this action. The Department revoked the February 12, 2013, Stop-Work Order, and, therefore, Petitioner is the prevailing party in the underlying action within the meaning of section 57.111(3)(c). On February 12, 2013, when Investigator Perez arrived at the job site, she observed Gilberto and Enrique Zepeda (Zepedas) performing drywall finishing work. Upon inquiry, the Zepedas informed Investigator Perez that they were performing the drywall finishing work for their employer, Gulf Coast Development, and provided her with Quang Dinh's cellular phone number. As previously noted, Investigator Perez is an investigator with the Department's Division of Workers' Compensation. When Investigator Perez arrived at the job site on February 12, 2013, a representative from the Department's Division of Insurance Fraud (Fraud Unit) was also present. In the presence of Investigator Perez, the representative from the Fraud Unit received from the Zepedas the same information that they provided to Investigator Perez regarding their employment status with Gulf Coast Development. While meeting with Investigator Perez and the representative from the Fraud Unit, the Zepedas memorialized their verbal statements by each executing an affidavit, and affirmatively stating therein that they were employed by Petitioner. Soon after receiving Mr. Dinh's phone number from the Zepedas, Investigator Perez phoned Mr. Dinh. When Mr. Dinh answered his phone, Investigator Perez identified herself and explained that she was with the Zepeda brothers. During the conversation with Mr. Dinh, Investigator Perez asked whom he used for workers' compensation coverage. Mr. Dinh replied "I am working on it," and the phone was disconnected. Investigator Perez immediately placed a second call to Mr. Dinh, and it was during this conversation that Mr. Dinh agreed to meet her at the job site. After speaking with Mr. Dinh, Investigator Perez contacted Advantage Plastering, a contractor at the job site, who informed her that they had hired Petitioner to perform the drywall finishing work. Following her conversation with the representative from Advantage Plastering, Investigator Perez, through the use of her mobile personal computer, searched the Department of State, Division of Corporations', website database (Sunbiz) for information on Gulf Coast Development. The information found on Sunbiz showed that Petitioner had been an active Florida corporation since May 9, 2007, that 27614 Imperial Shore Boulevard, Bonita Springs, Florida 34134, was the company's principal address, and that Quang Dinh was president of the corporation. Next, Investigator Perez checked the Department's Coverage and Compliance Automated System (CCAS) for information on proof of coverage and exemptions for Petitioner. CCAS revealed that Petitioner did not have any active coverage, but did have an exemption for Mr. Dinh. An exemption is a method by which a particular corporate officer can become exempt from the requirement to obtain workers' compensation insurance coverage, as authorized by section 440.05, Florida Statutes. When Mr. Dinh arrived at the job site, Investigator Perez again asked him about the company's current workers' compensation coverage, to which Mr. Dinh again replied, "I am working on it." Mr. Dinh then gave Investigator Perez a folder containing a blank application for workers' compensation insurance coverage. Based on her interviews with the Zepedas, Advantage Plastering, and Mr. Dinh, along with the information obtained from Sunbiz and CCAS, Investigator Perez determined that the Zepeda brothers were employed by Petitioner and that the Zepedas were not covered by workers' compensation insurance coverage. Given this information, Investigator Perez issued Petitioner a Stop-Work Order. Mr. Dinh testified that when he arrived at the job site, he informed Investigator Perez that the Zepedas were not his employees. Even if Mr. Dinh informed Investigator Perez that the Zepedas were not employees of Gulf Coast Development, his assertion was insufficient to negate the verbal and sworn statements given to Investigator Perez by the Zepedas and, moreover, conflicted with his previous statements to Investigator Perez that he was "working on" getting workers' compensation coverage for the Zepedas. In March 2013, the Zepedas recanted their earlier statements that they were employed by Gulf Coast Development. On May 3, 2013, Respondent issued an Order Releasing Stop-Work Order (Revocation). The facts uncovered in Investigator Perez's investigation on February 12, 2013, provided the Department with a reasonable basis to issue the Stop-Work Order to Petitioner.
