The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
Findings Of Fact Respondent made a timely request for formal hearing in response to Petitioner's Administrative Complaint. Respondent is Mark Allen Vanderwater. At all times pertinent to these proceedings, Mr. Vanderwater held certified general contractor license number CG-CO15948. His address of record is Coral Springs, Florida. John Andrews Anagnostaras, acting on behalf of Expedia Limited (Expedia), executed an agreement on December 17, 1986 with 2C.D.M., Inc., represented by Mark Allan Vanderwater, the Respondent. Under terms of the agreement ("Expedia- Vanderwater Agreement"), the Respondent's corporation agreed to act as General Contractor and provide certain services to Expedia in connection with the construction of the project known as "Bergin's Beer & Wine Garden" located in the Bayside Marketplace Development in Miami, Florida. This agreement titled the role of Expedia as "Owners Project Representative/Construction Manager." Among services to be provided by Respondent's corporation under the terms of the Expedia-Vanderwater Agreement, were: general construction services consisting of day to day supervision as requested by Expedia; provision of required licensing necessary to obtain construction permits; securing and delivery to Expedia of any required inspection, testing and approval certificates; collection and delivery to Expedia of all written warranties and equipment manuals; provision to Expedia of proof of Respondent's workman's compensation and general liability insurance coverage; and coordination of subcontractors and suppliers and delivery of the completed project to Expedia. Payments to Respondent, under terms of the Expedia-Vanderwater Agreement, were to consist of a $500 payment upon execution of the document, professional fees of $2,500, and $125 per day for daily supervision. As adduced from testimony at the hearing, a grand total of approximately $8,500 in fees was generated by Respondent. He received payments totalling $5,000 and claims he is still owed $3,500 by Expedia. The Expedia-Vanderwater Agreement specifically provided that payments to the various suppliers and subcontractors would be made directly by Expedia, as opposed to Respondent making such payments. While Respondent ordered materials, he made no payments of any consequence to subcontractors. Rather, the customers, Bergin and Sherman, made monetary payments to John Andrews Anagnostaras on behalf of Expedia. Numerous liens totalling at least $30,000 have been filed by various subcontractors due to lack of payment for supplies or services. The Expedia-Vanderwater Agreement further stipulated that Respondent's corporation would conduct all communications with the owners of the project through Expedia. The evidence fails to show that any communication from Respondent to Mr. Bergin or Ms. Sherman, the owners and customers, ever occurred through the conduit of Expedia. For that matter, the proof establishes that neither of the owners was aware of the involvement of Respondent or his corporation in the construction of the project until the closing days of March, 1987. Subsequent to execution of the "Expedia-Vanderwater Agreement," John Andrews Anagnostaras, again acting as representative for Expedia, executed an agreement with customers Kevin Bergin and Arlene Sherman. This agreement ("Expedia-Bergin Agreement") was signed on January 16, 1987, to confirm commencement of work on the Bergin project as of December 20, 1986. The Expedia-Bergin Agreement contemplated total project costs of $130,000 for construction of the commercial beer and wine retail store. The agreement designated Expedia as "Contractor" on the project. While the document reflects the signature of Arlene Sherman in a space provided for a witness, testimony at hearing established Ms. Sherman was also an owner in the project. An agreement with a subcontractor for supply and installation of the electrical network and accessories needed on the Bergin project was signed by John Andrews Anagnostaras on January 8, 1987. He also executed an agreement on January 7, 1987, with another subcontractor for manufacture, supply and installation of millwork on the Bergin project. An application, signed by Respondent and bearing the name and local address of Arlene Sherman as owner, resulted in the issuance of a building permit for construction of interior partitions, millwork, electrical and plumbing services, floor finishing and ceiling suspension work associated with the Bergin project. The permit was issued on January 29, 1987, well after the beginning of the project as documented in the Expedia-Bergin Agreement. Other than the pulling of the building permit and ordering of materials, Respondent's involvement with the project was negligible until the latter part of March, 1987. On March 18, 1987, during the course of a "walk through" inspection of the development where the Bergin project was being constructed, Petitioner's investigator was apprised that certain records of the developer of the Market Place at Bayside, Rouse Corporation, reflected the identity of the contractor on the Bergin project to be John Andrews Anagnostaras. Subsequent investigation revealed that neither John Andrews Anagnostaras or Expedia Limited are, or ever have been, registered or qualified as general contractors by the Florida Construction Licensing Board as required by law of the State of Florida. While the record is not clear regarding the exact date, a short time later a cease and desist agreement was executed by John Andrews Anagnostaras with the Petitioner wherein Mr. Anagnostaras agreed to desist from unlicensed contracting work. At about the time of the exposure of the unlicensed status of Expedia and its representative, Ms. Sherman was informed by Petitioner's investigator that the Bergin project would be shut down because of the contractor's lack of license. This was also the time when she received her first knowledge of the involvement of the Respondent in the Bergin project. Testimony of Kevin Bergin substantiates this evidence. Although he possessed a vague recollection of seeing Respondent in the background in one meeting with John Andrews Anagnostaras, Kevin Bergin learned of the Respondent's involvement in the construction project and the unlicensed situation regarding Expedia on or about April 1, 1987. Ms. Sherman met with Respondent at the construction site to prepare a "punch list" of unfinished items on the Bergin Project around the third week of March, 1987. This list of needs was formalized by Respondent and presented to Ms. Sherman on April 10, 1987. Respondent accomplished a minimal number of the items set forth in the "punch list," but failed to correct many major noted deficiencies such as installation of a brass bar, kitchen cabinets, beveled mirrors, ventilation for an ice machine, or replacement of three quarter inch counter topping for the previously installed one quarter inch topping. Ms. Sherman visited the project construction site an average of four days a week beginning in February, 1987, but has no clear recollection of the Respondent being there until meeting with him to prepare the "punch list." She does recall discussing the delay in millwork with the Respondent, and, while the date of this conversation could not be recalled, the discussion likely took place in the latter part of March, 1987. Respondent testified he appeared on the project construction site approximately 30 of the roughly 90 days of the project's duration. The length of his visits varied from a few minutes to a few hours, according to Respondent. He also testified that he considered himself the general contractor on the project and was without knowledge of the Expedia-Bergin Agreement assigning that role to Expedia. Further, he testified that he figured the owners lived in New York. This testimony of the Respondent is not credited in view of the address of Ms. Sherman on the building permit application and the Respondent's unsuccessful, insistent and contradictory attempts during the hearing to have Ms. Sherman recall several meetings with him during the time of the construction of the project. While Respondent provided a March 9, 1987, notice to the Rouse Corporation as the developer of the Marketplace at Bayside that Respondent was providing general contracting, site supervision and coordination services in connection with the Bergin project, the evidence fails to show provision of similar notice to owners Sherman and Bergin. Respondent was aware that Expedia and John Andrews Anagnostaras were not licensed as general contractors under Florida law. Respondent failed to qualify either Mr. Anagnostaras or Expedia as an affiliate with Respondent's corporation as required by section 488.119, Florida Statutes. Respondent aided a contractor (John Andrews Anagnostaras d/b/a Expedia) not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit, through use of Respondent's license, for a construction job known as "Bergin's Beer and Wine Garden." Respondent failed to properly supervise the finances on such construction job. By his own admission and the terms of the Expedia-Vanderwater Agreement, he relinquished to the unlicensed contractor all responsibility for finances connected with subcontractors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and imposing a penalty of $1500 and probation for a period of one year upon such terms and conditions as may be set by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5331 The following constitutes my specific rulings in accordance with section 120.59 (2), Florida Statutes, on all proposed findings of fact submitted by the parties: Proposed findings submitted by Petitioner Proposed findings submitted by the Petitioner consisted of 12 paragraphs, paragraphs 5-12 being unnumbered. Those paragraphs have been numbered and all proposed findings are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. Included in finding number 10. Included in findings number 3, 4, 10, 12, 14 and 15. Included in finding number 14. Included in findings number 3, 4, 6, 14, IS and 22. The first sentence is included in finding number 16. Remainder rejected as unnecessary. Included in findings 16, 17 and 18. Included in findings 7 and 11. Included in finding number 7. Included in findings 18 and 19. Proposed findings submitted by Respondent While unrepresented at hearing, Respondent's proposed findings were filed on his behalf by Edmond L. Sugar, Esquire. Although untimely filed with the Division of Administrative Hearings (6 days after the required deadline determined at hearing) and unnumbered, those 21 paragraphs have been numbered 1- 21 and are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. As to co-ownership, this proposal is included In finding number 10. The remainder is rejected as unnecessary. Rejected as contrary to the weight of the evidence. Mr. Anagnostaras held himself out to the owners as an independent contractor. Included in findings numbered 3, 4 and 6. Rejected as not supported by the evidence, see Petitioner's exhibit number 5. Rejected on the basis of credibility. Included in finding number 19. Included in finding number 12. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary. Included only as to signing of cease and desist agreement in finding number 14. Rejected as to remainder of proposal as not supported by the evidence. See Petitioner Exhibit 3. Included in finding number 17 as to date documentation of the punch list was submitted to Ms. Sherman. Remainder of proposal rejected as not supported by the evidence. Rejected, not supported by the evidence. Rejected as unnecessary. Rejected as unnecessary and not supported by the evidence. Rejected as not supported by the evidence. Rejected as not supported by the evidence. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark Allen Vanderwater 3244 Coral Ridge Drive Coral Springs, Florida 33065 Edmond L. Sugar, Esquire HUNTER & HUNTER, P.A. 1930 Tyler Street Hollywood, Florida 33020 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
The Issue Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?
Findings Of Fact Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services." On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally designed; and that the system, as installed, would require additional plumbing and a pump to operate it. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs. The agency then instituted this instant disciplinary action against Respondent. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate. RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997. COPIES FURNISHED: Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A Tallahassee, FL 32399-2949 Larry A. Ford Route 1 Box 1705 O'Brien, FL 32071 David West, Esquire Department of Health District 3 Legal Office 1000 Northeast 16th Avenue, Box 3 Gainesville, FL 32601 Dr. James Howell, Secretary Department of Health 1317 Winewood Bouelvard Building 6 Room 306 Tallahassee, FL 32399-0700 Pete Peterson 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 32399-0700
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Laven owns a parcel of land at 1500 Bay View Drive, Sarasota, Florida on which he has a home. The property is approximately 180 feet by 100 feet, and is located on Sarasota Bay. A seawall has been constructed along the shoreline. Respondent Cloud owns a parcel of land at 2610 Cardinal Lane, Sarasota, Florida that is contiguous to Respondent Laven's property at 1500 Bay View Drive, Sarasota, Florida that is also located on Sarasota Bay. Approximately 100 feet of the property is located along the shoreline of Sarasota Bay. Sarasota Bay is currently designated as a Class III outstanding Florida waterbody. On or about June 28, 1991 Respondents Laven/Cloud filed an application to modify existing permit number 581885033 which had been previously issued to Respondent Laven for construction of a private dock consisting of an access pier 210 feet by 5 feet, with a terminal platform 20 feet by 4 feet on Laven's property located at 1500 Bay View Drive, Sarasota, Florida. Previous to the modified application being filed by Laven and Cloud, Laven had attempted to modify permit no. 581885033 by reducing the access pier from 210 feet by 5 feet to 175 feet by 5 feet. The Department concluded that the dock, as modified, would not reach water of sufficient depth to prevent damage to the seagrass, and considered this a major modification requiring a new application. Therefore, the Department denied the modified application, and Respondent Laven did not file a new application. The application filed by Laven/Cloud on or about June 28, 1991 to modify existing permit 581885033 proposed to construct a private dock on the property line between Laven's and Cloud's property. The private dock was proposed to consist of an access pier 4 feet by 210 feet, with two terminal platforms, each 25 feet by 6 feet. After review of the application to modify permit 58188503 the Department issued a Notice of Intent to issue a permit for the proposed construction of the private dock on August 2, 1991. The Notice of Intent included 18 specific conditions to which the proposed dock would be subject. Those relevant to this proceeding are as follows: 1) . . . . If historical or archaeological artifacts, such as Indian canoes, are discovered at any time within the project site the permittee shall immediately notify the district office and the Bureau of Historic Preservation, Division of Archives, History and Records Management, R.A. Gray Building, Tallahassee, Florida 32301. Turbidity screens shall be utilized, secured, and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Double turbidity screens, staked hay bales, staged construction and other additional measures shall be used as necessary to insure compliance with water quality standards in Chapter 17-3, Florida Administrative Code. During construction, all areas of exposed soils shall be effectively isolated from waters of the state to prevent erosion or deposition. All exposed soils shall be stabilized with an appropriate ground cover within 72 hours of attaining final grade. 5) . . . . 6) . . . . The applicant is not permitted to conduct or construct the following activities or facilities in conjunction with this dock structure: Fish cleaning facilities. Fuel hoses or fueling facilities. The mooring of boats or vessels for live aboards. The mooring of boats utilized for com- mercial purposes such as fishing, scuba diving, boat rental, etc. Picnic tables or benches. Storage sheds or enclosed structures. Covered boat slips. Sanitary facilities. The rental of boat slips or mooring space. Turbidity screens shall effectively encom- pass each piling during installation and remain in place until any generated turbidity has subsided. Turbidity screens shall effectively encompass an area around each piling not to exceed 7 square feet. Any watercraft which may be utilized during construction activities shall only operate/moor in waters of sufficient depth so as not to cause bottom scour or prop dredging. The access pier shall be elevated a minimum of 5 feet above mean high water for the most waterward 150 linear feet of the access pier. The most waterward 150 linear feet of the access pier shall be constructed with the slated[sic] design indicated on sheet 4 of permit submittals. The most landward 60 feet of the access pier shall be constructed utilizing the 2 x 6 decking. The permittees shall construct 100 linear feet of rip rap along the existing vertical seawall as indicated on sheet 1 of permit submittals. Rip rap material shall consist of natural boulders or clean concrete rubble six inches to three feet in diameter or in average dimensions. The slope of the rip rap shall be no steeper than 2H:1V. There shall be no reinforcing rods or other similar protrusions in concrete rubble and all rubble or boulders shall be free of attached sediments. The rip rap shall be install concurrently with the construction of the permitted dock. The permittees shall grant the Department a conservation easement over the shorelines of the two subject parcels. A conservation easement shall be established over the seawall cap and 2 feet waterward of the seawall for the entire length of the seawall to 1500 Bay View Drive (Lots 1, 2, 3, 4, 11, 12, 13, and 14 Block Q, Bay View Heights Addition). A conservation easement shall also be established between the limits of the mean high water linear and the landward extent of waters of the State (Pursuant to Section 170301.400[sic] FAC) for the entire length of the shoreline at 2610 Cardinal Place (Lots 5, 6, 7, 8, 15, 16, 17 and 18, Block Q, Bay View Heights Addition). 14) . . . . 15) . . . . The following seagrass monitoring program shall be implemented and adhered to: Within 45 days of the issuance of this permit (and prior to initiation of dock con- struction) the permittee shall establish a preconstruction monitoring program consisting of one meter square grids within the area specified on sheet 1 A of permit attachments. A minimum of 10 random one meter square plots shall be selected within each area A and B and also along the centerline established along the length of the dock. The permittee shall measure percent areal coverage of seagrasses within each plot within the grid system. Each of the plots shall be monitored as specified in above a minimum of two times per year (July and January) over a three year monitoring period subsequent to dock construction. Reports shall include date, water depth, water clarity, species of seagrasses observed, percent areal coverage and representative height of seagrasses within each plot. Moni- toring reports shall be submitted to the Department within 30 days of the monitoring event. The first monitoring event shall occur during the first January or July (which ever occurs first) subsequent to completion of dock construction. Hand railing shall be constructed along the entire length of the access pier (on both sides). The temporary or permanent mooring of watercraft shall only occur at the terminal platform. 18) . . . . By imposing special conditions 3, 4, 8 and 9 it will ensure that the dock construction will have a temporary minimal impact on the water quality, and there will be no permanent water quality impacts as a result of this project. If this permit is not issued, it would be possible for each of the applicants to build an exempt dock on his property which would require two accesses or swaths through the seagrass beds. An exempt dock (500 square feet or less) may result in the dock terminating in seagrass beds and in water of insufficient depth to prevent damage to the seagrass beds or to prevent bottom scour or propeller dredging. The project site consists of a shoreline with a shoal area where Shoal grass (Halodule wrightii) and Turtle grass (Thalassia sp.) are growing, with the Turtle grass being the predominant species to a point further waterward to where there is a significant change in the water depth. Such point being approximately at the termination of the proposed dock. Beyond this point the seagrass beds are scattered. Therefore, any dock shorter than approximately 210 feet would terminate in the main seagrass beds and result in the seagrass beds being routinely disrupted or damaged by power boats. The proposed design of the most waterward 150 linear feet of the deck portion of the proposed dock has less solid surface than a normal deck, and, along with the proposed height of the most waterward 150 linear feet of the proposed dock, would allow substantially more light to penetrate the area and provide sufficient light for healthy existence of the seagrasses. The proposed impacts consists of disturbance of the seagrass beds. Requiring railing along the entire access pier on both sides will preclude mooring of motor craft in the area of the seagrass and in water depths insufficient to prevent damage to the seagrass, and to prevent bottom souring and propeller dredging. Because of the length, height and design of the dock there would be minimal impact, if any, on the seagrass beds. The design of the dock will ensure that the project will not adversely affect the functions being performed in the area intended for the dock. The conservation easement will ensure that a feeding ground for wading birds will be maintained, and along with the dock design will minimize any impacts that the proposed dock will have on the fish and wild life habitats. The construction of the 100 linear feet of rip rap along the existing vertical seawall on Sarasota Bay along Laven's property will reduce scouring and erosion at the base of the seawall, and provide beneficial habitat which will be an improvement of the seawall alone. There may be minimal impacts on recreation in that it may impose some inconvenience for those fishing and those attempting to access the bay for sailing. There may be some minimal impact on navigation in that the proposed dock will entend out approximately 35 feet further than any other existing dock in the area but due to the shallow water in this area boats presently have to travel at a reduced rate of speed, and for this reason the proposed dock would not adversely affect navigation. However, this should be mitigated by requiring lights on the dock as a safety feature. The project will not adversely affect the fishing, or recreational values, or marine productivity in the vicinity of the project. The proposed project will not adversely affect the public health, safety, or welfare or property of others. The proposed dock will be a permanent structure, notwithstanding that regular mainentaince will be required. The Respondents Laven/Cloud have provided reasonable assurances that the proposed project will be clearly in the public interest, notwithstanding the minimal impact it may have on recreation and navigation. Particularly, when all Special Conditions are considered, specifically Special Conditions 12 and 13 pertaining to rip rap along the vertical seawall on Laven's propertry and the granting of the Conservation Easement over both Laven's and Cloud's shoreline.
Recommendation Accordingly, in view of the above Findings of Fact and Conclusions of Law, it is, therefore, recommended that the Department enter a Final Order issuing Permit Number 581885033 to Respondents Robert Laven and John Cloud as set forth in the Department's Intent To Issue dated August 2, 1991 provided that the grant of the subject permit should include the general and specific conditions in the Intent To Issue as well as the condition requiring lights on the dock for safety purposes as set forth in Finding of Fact 20 above. RECOMMENDED this 21st day of November, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3988 The following constitutes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Both paragraphs regarding Respondent Cloud's testimony at the hearing go to his credibility as a witness and are not stated as a finding of fact and are therefore rejected. Paragraphs 1 and 2 regarding Rose Poynor's testimony appear to be supported by documents or testimony not received at the hearing and are therefore rejected. Paragraph 3 regarding Rose Poynor's testimony is either immaterial or irrelevant or goes to her credibility as a witness or is supported by facts not in the record. The paragraph regarding Roy R. Lewis' testimony goes to his credibility as a witness and is not a statement of fact. Paragraphs 1 and 2 regarding Robert Patten's testimony is more of a restatement of his testimony than a finding of fact. But in any event, are neither material or relevant. The next to the last paragraph is not supported by the record but see Finding of Fact 20. The last unnumbered paragraph is not supported by the record. See Finding of Fact 24. Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed findings of fact: 1 (1, 2, 3); 2 (4, 6); 3 (5); 4 (11); 5 (11); 6 (13); 7 (7, 8); 8 (7, 8); 9 (7, 8); 10 (7, 8); 11 (7); 12 (7); 13 (12, 15); 14 (7); 15 (12); 16 (7, 14); 17 (15); 18 (7, 16); 19 (17); 20 (7); 21 (7); 22 (7, 18); 23 (18); 24 (20); 25 (7, 17); 26 (23); 27 (19); 28 (21); 29 (22); 30 (7); 31 (17); 32 (7); 33 (9); 34 (9, 10); 35 (7, 8, 11, 12, 14-22); and 36 (7). Rulings on Proposed Findings of Fact Submitted by Respondents Laven and Cloud Respondents Laven and Cloud have divided their findings into two groups (1) Findings of Fact and (2) Ultimate Findings. Since the Findings of Fact are duplicative of the Ultimate Facts or are only restatements of the witnesses testimony, I will respond only to the Ultimate Facts. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the proposed finding of fact: 1 (1); 2 (3); 3 (2); 4 (4, 6); 5 (3); 6 (7, 12); 7 (7, 17, 18); 8 (7); 9 (7); 10 (7, 24); 11 (7, 24); 12 (22); 13 (17); 14 (is a duplication of paragraph 13); 15 (20); 16 (21) and 17 (16). COPIES FURNISHED: Alan S. Dorrill 1726 Floyd Street Sarasota, FL 34239 F. Craig Richardson, Esquire Icard, Merrill, Cullen, Timm, Furen, & Ginsbrug, P.A. 2033 Main Street, Suite 600 Sarasota, FL 34237 Carol Forthman, Esquire Maureen A. Eggert, Certified Legal Intern 2600 Blairstone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about March 6, 1984, petitioner applied for a DER permit to construct a marina on state owned submerged land located in Punta Rassa, Lee County, Florida. The original design requested approval to build slips for 54 boats. This design was later modified to conform to suggested modifications made by DER staff. The modification reduced the size of the marina to 30 boat slips. By an Intent to Issue dated April 24, 1985, petitioner was advised that the DER intended to issue the permit with 17 special conditions. Special Condition Number 1 advised petitioner of the Florida law which states that construction on state sovereignty lands may not be commenced prior to receiving from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. In none of the 17 special conditions, nor in any other portion of the Intent to Issue, was it stated when the permit time would begin to run, or when it would expire. The expiration date of the proposed permit simply was not mentioned. The Intent to Issue did contain a standard "point of entry" notice, advising that a petition for a hearing could be filed and stating that the hearing process was designed to formulate agency action. Having no objection to the DER's Intent to Issue and the conditions thereof, the petitioner determined not to request an administrative hearing with regard to said Intent. On May 17, 1985, the DER issued to petitioner Permit Number 360836415. This permit included 15 general conditions and the same 17 special conditions that were contained in the Intent to Issue. In addition, the permit stated that it would expire on June 1, 1987. The permit was accompanied by a letter. Neither the letter, nor the permit, bore the stamp of the agency clerk or contained language advising petitioner of its right to petition for an administrative hearing or other "point of entry" language. DER never notified petitioner by any document that contained "point of entry" language that the permit time would begin running immediately and would expire on June 1, 1987. In order to obtain a sovereignty land lease from the Trustees of the Internal Improvement Trust Fund, petitioner was required to modify its proposed marina design by reducing the number of boat slips to 14. The Trustees approved the lease on or about July 29, 1986, although the Certification of Board Action attesting the Board's approval of the lease, as well as the sovereignty submerged land lease itself, was not forwarded to the petitioner until March 12, 1987. Due to the modifications required by the Trustees, the petitioner requested DER to modify its permit to reflect the reduction of the project scope. The request represented a minor modification to the permit and was granted by DER by letter dated September 30, 1986. The letter of modification does not suggest that the original expiration date of the permit had been changed. As of June 1, 1987, construction work on the proposed marina had not yet begun. The petitioner's agent relied upon a promulgated rule of the DER and assumed that the permit time would not begin to run on this project until petitioner had obtained consent to use state owned submerged land. DER's Dredge and Fill Application is encompassed in a form which is adopted by reference in Rule 17-1.203(1), Florida Administrative Code. This rule was adopted in 1982 and is still in effect today. A portion of that form, Appendix E, paragraph 3(g), on page 30, states that Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. (Emphasis supplied.) Except for this rule, DER has no other published instructions to applicants as to when permit times begin to run. Since the effective date of the Warren S. Henderson Wetlands Protection Act (Sections 403.91 - .929, Florida Statutes) in October of 1984, DER has not followed its policy outlined in Form 17-1.203(1), as adopted by rule. This contrary practice is based on DER's interpretation of the Henderson Act's failure to include language which was previously included in Section 253.124, Florida Statutes, to the effect that DER permits do not become effective until all other local, state and federal permits are issued. DER's internal practice that calculates the running of the permit time prior to receiving approval to use state owned submerged land is not the subject of any public notice, memorandum or instructions generally available to the public or permit applicants. DER does not require permittees to provide proof of submerged land consent subsequent to the issuance of the DER permit. Also, DER has no internal mechanism for regularly apprising itself of permits which are soon to expire. DER does process and grant time extensions of permits. Requests for time extensions are made through a simple written request, and DER will generally grant such requests if the subject permit is still valid. If the DER permit has already expired at the time that the request for an extension is made, DER requires a new permit application. In this case, petitioner did not request an extension at any time before June 1, 1987. As noted above, it was the belief of petitioner's agent that the two-year permit term would not begin to run until the required Trustee's consent was secured. It was not until June 23 or 24, 1987, that he learned that DER considered the permit to have expired on June 1, 1987. In July of 1987, petitioner did re-apply for a new permit, but DER had environmental objections to the issuance of a new permit. The petition initiating these proceedings was subsequently filed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order holding that Permit Number 360836415 does not expire until two years from March 12, 1987, and that appropriate recognition be given to the time which has elapsed due to the pendency of the instant proceeding. Respectfully Submitted and entered this 13th day of January, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1989. APPENDIX The Proposed findings of fact Submitted by the parties have been carefully considered and are accepted, incorporated and/or Summarized in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as an improper factual finding. Respondent 19. Last three Sentences rejected as contrary to the evidence. 21. Partially rejected due to the existence of Rule 17-1.203(1), Florida Administrative Code. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact The Florida Department of Transportation is seeking to initiate a project to widen a portion of Gulf Boulevard (State Road 699) on Treasure Island, Pinellas County, Florida. In connection with the project, DOT filed an application for "complex source permit" with DER prior to April, 1976. The Petitioners filed a petition and request for public hearing in connection with that application on April 19, 1976. The matter was forwarded to the office of the Division of Administrative Hearings for further proceedings. DER thereafter attempted to withdraw its complex source permit rule. DOT withdrew its application for permit, and by order entered September 30, 1977, a Hearing Officer of the Division dismissed the case. The effort to repeal the complex source permit rule was later determined to be invalid, DOT re-applied for a permit, and Petitioners renewed their request for a hearing by petition dated April 18, 1978. Proceedings were thereafter conducted before the Division of Administrative Hearings, and a recommended order was entered on December 6, 1978. On December 6, 1976, DOT filed an application for dredge and fill permit with DER respecting the same road-widening project. The permit was issued by the Southwest District Office of DER, which is located in Tampa. Notice of the pendency of the dredge and fill permit application was published in a local newspaper of general distribution. No direct notice, however, was given to the Petitioners. The Petitioners directed an inquiry as to the existence of outstanding permit applications in connection with the project by letter dated October 18, 1977. The Department responded advising the Petitioners as follows: Dredge and fill permits for the installation of culverts have been applied for in our Southwest District Office. The permits are currently pending and the application files. . . are available for inspection daily. Despite the fact that the permit had actually been issued nearly seven months earlier, DER did not advise the Petitioners that the permit had been issued, but only that it was pending. Petitioners apparently made no further inquiry respecting the dredge and fill permit until they learned, in connection with proceedings being conducted respecting the complex source permit application, that the dredge and fill permit had been issued. The Petitioners promptly thereafter initiated this proceeding. A copy of the petition in this proceeding was forwarded to counsel for the Department of Transportation by the Petitioners. At a pre-hearing conference conducted in the complex source permit proceeding, counsel for DOT indicated that it may participate in this proceeding. Counsel for DER discussed this proceeding with counsel for DOT and was advised that DOT would not become a party to this proceeding. DOT has not appeared as a party to this proceeding. No evidence was offered to establish whether DOT has taken any action to complete the work authorized by the dredge and fill permit that was issued.
The Issue The issues remaining in this case are: (1) whether New River Solid Waste Association (NRSWA) requested that its permitted bioreactor landfill system be included as part of its application for renewal of its operating permit for the New River Regional Landfill in Union County, Florida; (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1); and (3) whether the prevailing party is entitled to an award of attorney fees and costs under Section 403.412(2)(f). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact NRSWA is comprised of Union, Baker, and Bradford Counties and was formed to share the costs associated with solid waste disposal. NRSWA owns and operates the New River Regional Landfill in Union County. The landfill was initially permitted in 1990 and was expanded and the original permit renewed in 1995 for an additional five years, expiring on November 6, 2000. The landfill now has a permit for disposal of Class I waste in three cells, with a fourth under design; it also has a permit for disposal of Class III waste and a permit for a waste tire collection center. Cells 1 and 2 were retired, and in July 1999 NRSWA applied to modify its operating permit (Permit No. SC63-271982) to allow construction and operation of a bioreactor landfill system on retired cells 1 and 2. On June 26, 2000, DEP gave notice of its intent to issue NRSWA a permit modification to construct and operate the bioreactor system. On July 11, 2000, Petitioner, Paul Still, timely filed a Petition for Administrative Hearing to challenge DEP's proposed agency action. On August 15, 2000, DEP referred the matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition for Administrative Hearing for lack of standing. On September 8, 2000, NRSWA applied to DEP for renewal of Permit No. SC63-271982 for continued operation of its landfill. The renewal application requested that all landfill permits be consolidated into the renewal permit as a single operating permit. However, at the time Case No. 00-3448 on the bioreactor modification application remained pending, and the renewal application did not specify the bioreactor modification as part of the renewal application. Frank Darabi, NRSWA's professional engineer, signed a transmittal letter on September 7, 2000; arranged for delivery of the application to DEP's Northeast District office in Jacksonville, Florida; and thought it was delivered and left there after-hours on September 7, 2000. But NRSWA did not prove that the renewal application was submitted to DEP before September 8, 2000, when it was filed-stamped. The renewal application was submitted on DEP FORM 62- 701.900(1). The application was signed on the behalf of NRSWA by Darrell O'Neal, its Executive Director. By this signature on the form, O'Neal swore that all statements in the application were true, correct, and complete and agreed on behalf of NRSWA to comply with applicable statutes and DEP rules. The application was also signed, sealed and dated by Frank Darabi, as professional engineer. Darabi's signature certified that all engineering features in the application were "designed/examined by me and found to conform to engineering principals [sic] applicable to such facilities." On September 18, 2000, the ALJ in Case No. 00-3448 entered an Order Granting Motion to Dismiss with Leave to Amend. The ALJ held that the allegations in the Petition for Administrative Hearing failed to demonstrate that the Petitioner "ha[d] sustained, or [wa]s in the immediate danger of sustaining some direct injury as a result of the proposed agency action." The ALJ granted Petitioner leave to amend as to standing. On September 26, 2000, Petitioner filed an Amended Petition for Administrative Hearing in Case No. 00-3448, which included new allegations in an attempt to address the question of Petitioner's standing. On October 5, 2000, NRSWA filed a Motion to Dismiss the Amended Petition for Administrative Hearing. NRSWA asserted that the Amended Petition for Administrative Hearing failed to sufficiently allege Petitioner's standing. On October 6, 2000, DEP issued a Request for Additional Information (RAI) as to the renewal application. The RAI did not ask for any information concerning the pending bioreactor modification application. On October 20, 2000, the ALJ in Case No. 00-3448 granted NRSWA's motion to dismiss Petitioner's amended petition in that case, finding that the amended petition "ha[d] set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings." On November 3, 2000, NRSWA submitted its response to DEP's RAI, which included the statement: Please note the permit modification application for the bioreactor construction and operation, DEP File Number 0013500-004-SC, is currently under review by Department. It is understood that the previously submitted bioreactor information is to be incorporated in the renewed permit. This statement was included after Darabi asked DEP and was told that it would be appropriate to include information about the pending bioreactor modification application in the response to RAI although not asked for in the RAI. NRSWA's response to RAI was signed by Darabi, with a copy to O'Neal. Darabi's signature did not make representations or certifications like those provided for in DEP FORM 62- 701.900(1). However, Darabi had been NRSWA's professional engineer since its inception, had signed numerous application submissions on behalf of NRSWA over the years, and clearly had authorization to submit the response to RAI. DEP entered its Final Order dismissing Case No. 00-3448 on December 4, 2000. On December 12, 2000, DEP issued Permit Number 001-3500004-SC to NRSWA for the bioreactor modification. This permit provided in pertinent part: This modification shall remain in effect as long as the underlying permit, SC63-271982, is in effect. The underlying permit will remain in effect until final agency action is taken on the renewal application of that permit . . . . Petitioner did not appeal the Final Order in Case No. 00-3448. Following review of the additional information submitted by NRSWA on its renewal application, DEP deemed the permit application complete as of November 3, 2000. Additional information was submitted in January 2001, including a request submitted on January 11 that the bioreactor modification part of the renewal permit address specific conditions omitted from the modification permit issued on December 12, 2000. On February 15, 2001, DEP gave notice of intent to renew NRSWA's permit for continued operation of its landfill. DEP's draft permit incorporated specific conditions addressing the construction and operation of the bioreactor system, as well as all other permitted landfill activities. The evidence is clear that, since November 3, 2000, NRSWA consistently has taken the position that the bioreactor system modification was included in its renewal application. Alleged Improper Purpose The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of NRSWA's permit renewal applications. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why NRSWA's permit renewal application, with bioreactor landfill system in cells 1 and 2, should not be granted. Petitioner failed in his attempts in large part because several issues he wanted to litigate were outside the scope of a permit renewal application and because he had no expert testimony on issues he was allowed to raise. At that point, Petitioner announced he was dropping all issues but one. The sole remaining issue after Petitioner's announcement might be viewed as a procedural technicality bordering on being frivolous. But it arose out of the complex (as DEP described it, "muddled") procedural history. Under these circumstances, it is not found that Petitioner's continued litigation of his sole remaining issue was frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) dismissing the verified Petition for Administrative Hearing; (2) granting NRSWA's application to renew Permit No. SC63-271982, as set forth in the draft permit--i.e., for merger and continued operation of all existing landfill operations, including NRSWA's Class III waste disposal permit, its permit for a waste tire collection center, and its permit for the bioreactor landfill system on cells 1 and 2; and (3) denying NRSWA's request for attorney fees and costs from Petitioner under Section 120.595(1) and Section 403.312(2)(f). Jurisdiction is reserved to enter a final order on NRSWA's Motion for Attorney Fees and Costs under Section 120.569(2)(e), to the extent that it has been preserved. DONE AND ENTERED this 7th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Paul Still Route 4 Box 1297H Starke, Florida 32091 Jonathan F. Wershow, Esquire Post Office Box 1260 Gainesville, Florida 32602 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
