Findings Of Fact Respondent Cole seeks to construct a weed barrier approximately 40 feet from the end of a dead-end canal. Petitioner Weitershausen's property begins approximately 48 feet from the end of the canal. The only two property owners whose access to the canal will be restricted by the weed barrier are Respondent Cole and Mr. Wheeler, both of whom consent to the placing of the barrier. Throughout most of the year weeds are not a problem in the canal. However, under certain conditions hydrilla is blown into the canal and backs up at the end adjacent to Mr. Cole's property. Without a weed barrier these weeds are blown to the end of the canal and remain there where they settle to the bottom, break down, and because of the decomposition smell and are otherwise objectionable. The weed barrier as proposed will keep the hydrilla floating longer and reduce this settling and decomposition. The weed barrier does not create a safety hazard. The weed barrier will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest nor will it result in the destruction of oyster beds, clam beds, or marine productivity to such am extent as to be contrary to the public interest. The weed barrier will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. The 8 feet of distance between the weed barrier and Mr. Weitershausen's property provides a catch basin for the buildup of weeds short of Mr. Weitershausen's property. So long as the weeds are properly cleaned out this catch basin is sufficient to prevent weeds from building up along Mr. Weitershausen's property.
Recommendation It is, therefore, RECOMMENDED that the permit as applied for be issued with the condition that the applicant be required to remove the weeds from in front of the weed barrier at least once a month and at any time the weeds should back up to the extent that they substantially encroach on Mr. Weitershausen's waterfront. ENTERED this 17th day of September, 1976 in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. L. Caleen, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Jerry E. Cole Route 6, Box 871Y Brooksville, Florida 33512 Mr. R. C. Weitershausen Route 6, Box 871X Brooksville, Florida 33512
Findings Of Fact Respondent erected an outdoor advertising sign along I-4, 10.81 miles east of U.S. 301 and has never applied for or received a permit for this sign. No permit has ever been issued for a sign at this location which is not within an incorporated town or city. The sign advertising Gator Jungle Alligator Farm and an arrow on the sign points to the direction of the alligator farm. The sign is located within 1,500 feet of another sign along I-4 on the same side of the highway facing in the same direction. This sign is also less than 500 feet from the end of the widening of the I-4 at which the entrance ramp to the I-4 ends.
The Issue Whether Proposed Rule 46-4.0081(2)(d), Florida Administrative Code, providing that, beginning January 1, 1998, no person shall fish with, set, or place in the water any seine with a mesh size larger than two inches stretched mesh, is a valid exercise of the delegated legislative authority of Respondent, Marine Fisheries Commission, and whether said rule was proposed in accordance with the statutory standards Respondent must follow pursuant to Section 375.025, Florida Statutes.
Findings Of Fact Existing rules of the MFC require that the main body of a seine net be constructed of two-inch mesh or smaller. Wings with larger mesh may be used. [Rule 46-4.0081(1)(g), Florida Administrative Code] The challenged rule amendment [Proposed Rule 46-4.0081(2)(d)] deletes the provision that allows a wing with larger mesh to be attached to a two-inch mesh seine. The unrefuted evidence is that the proposed rule amendment will reduce the "catchability rate" of a single such seine net for many types of fish and not be commercially feasible for mullet, except possibly in "roe season,"3 and that a seine net as currently permitted with larger mesh in the wings only is commercially feasible for mullet as well as other fish. "Catchability rate" is defined as "that fraction of a fish stock which is caught by a unit of fishing effort." "Roe season" is that part of the year in which there is greater schooling and movement of adult mullet, approximately two years old and eleven or more inches in length, which hopefully have already reproduced. However, legal size is not a guarantee that a fish has reproduced. See below, Finding of Fact 49. The term "stretched mesh" means that the mesh is measured by pulling it to its maximum length. A two-inch stretched mesh forms approximately a one inch square when fully open. Generally, there are two types of nets used to catch fish: those that corral the fish by concentrating them into any area small enough that they can be easily landed; and those that catch the fish by entangling them in net material. Gill nets fall into the latter category. Gill nets catch fish when a fish enters a mesh opening, finds that it is too large to pass through the mesh opening, and entangles its gills in the mesh when it attempts to back out of the net. The fish then dies due to lack of water or lack of undissolved oxygen, or it can be pulled through the net manually and released. Fish mortality from gill nets is higher in warm months. From a fish's or an environmentalist's viewpoint, pulling the fish through a net is an exercise in futility because pulling the fish through a net removes its natural slime, and without its natural slime, a fish will die soon after release. The size of fish entangled in a gill net is a function of the size of the mesh. Larger mesh nets gill larger fish, while smaller mesh nets gill smaller fish. Which small fish are gilled varies from time to time and place to place, dependent upon many factors, including but not limited to how and where the net is deployed, how rapidly it is hauled in, and which fish are targeted. To some extent, it is fair to say that all nets are gill nets, because all nets entangle some fish of some size, but this is an oversimplification. Mesh size has long been used by Florida's MFC and even by other states as a management tool for limiting the harvest of a variety of fish. "By-catch" is marine life which is not targeted by the fisher deploying the net, but which nonetheless is captured in some manner by the net. For instance, in shrimp nets, the "by- catch" of fin fish typically outnumbers the catch of shrimp (the targeted specie) by four to one. Juvenile (pre-reproductive age) fish of the targeted specie can also be "by-catch" when netted with their elders. All nets capture by-catch to some degree. Depending upon net deployment methodology, any net will also pick up "gumbo," a term employed here to delineate by- catch, undissolved algae, plant debris, and other items which do not contribute to a commercial fish crop. On November 8, 1994, Florida voters approved the adoption of Article X, Section 16, of the Florida Constitution. That amendment, which took effect July 1, 1995, prohibited the use of gill or entangling nets anywhere in state waters, and placed a 500 square foot limitation on "other nets" in nearshore and inshore Florida waters.4 Seine nets constitute "other nets" under the net ban amendment. Landings for mullet are significantly down since the amendment, from more than 16 million pounds per year to five million pounds. This has had a direct and favorable impact on the increase of the "spawning potential ratio" for mullet. "Spawning potential ratio" ("SPR") means egg production per year that is available from a fish stock. It is the ratio of a single specie's eggs available in stock that has been fished, over the eggs that would be available in unfished stock. SPRs are scientifically established for each fish specie by the MFC. The Commission considers that if the stock falls below those levels there is a real risk that the stock specie will decline abruptly to some much lower level and not be able to recover. Once the SPR rises to the targeted level, there is greater assurance of specie recovery and preservation, but there are still many reasons to manage the fishery in an optimal use of that resource. The maximum practicable stock abundance mandated by law might be at a level higher than MFC's threshold. The SPR is basically a minimum reproductive goal for fish, per specie. Some species continue to be in an overfished condition since the net ban amendment took effect. However, without taking into account the proposed two- inch mesh limitation, the SPR for mullet would reach the MFC's minimum goal of 35 percent within one to two years, even though it was originally thought such numbers might only be reached within nine years after the effective date of the constitutional amendment. Although it is important to understand that MFC's SPR goals are thresholds only, it is clear that the so-called "net ban" is beginning to have the desired environmental effect.5 Petitioners maintain that the only feasible place to fish with the proposed 500 square foot, two-inch mesh nets would be inshore where smaller mullet feed, which sets up a situation in which more juvenile fish, particularly juvenile mullet, will die before they have a chance to reproduce, and therefore more non-targeted by-catch will be wasted than would be wasted if the rule is not amended. On this theory, they also contend that the proposed rule would not permit reasonable means and quantities of harvesting of fish, particularly mullet, and is otherwise inadequate for reasons related in Sections 370.025(2)(a), (b), (c), and (g), Florida Statutes. MFC is not a constitutional agency, but Florida's Legislature has mandated its mission, in pertinent part, as: Section 370.027, Florida Statutes. Rulemaking authority with respect to marine life. -- Pursuant to the policy and standards in s. 370.025, the Marine Fisheries Commission is delegated full rulemaking authority over marine life, . . . *** Exclusive rulemaking authority in the following areas relating to marine life, with the exception of endangered species, is vested in the commission; . . . Gear specifications; Prohibited gear; *** In 1997, the Florida Legislature further provided a net ban statute, implementing the constitutional amendment, and clearly authorized its legislatively-created agency, the MFC, to promulgate rules to implement that statute and the constitutional amendment, as follows: Illegal use of nets. -- It is unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net that is not consistent with the provisions of s. 16, Article X of the State Constitution. (2)(a) Beginning July 1, 1998, it is also unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net, as defined in subsection (3) and all attachments to such nets, that combined are larger than 500 square feet and have not been expressly authorized for such use by rule of the Marine Fisheries Commission under s. 370.027. The use of currently legal shrimp trawls and purse seines outside nearshore and inshore Florida waters shall continue to be legal until the commission implements rules regulating those types of gear. The use of gill or entangling nets of any size is prohibited, as such nets are defined in s. 16, Article X of the State Constitution. Any net constructed wholly or partially of monofilament or multifilament material, other than a hand thrown cast net, or a handheld landing or dip net, shall be considered to be an entangling net within the prohibition of s. 16, Article X of the State Constitution unless specifically authorized by rule of the commission. Multifilament material shall not be defined to include nets constructed or braided or twisted nylon, cotton, linen twine, or polypropylene twine. This subsection shall not be construed to apply to aquaculture activities licenses issued pursuant to s. 370.26. As used in s. 16, Article X of the State Constitution and this subsection, the term "net" or "netting" must be broadly construed to include all manner or combination of mesh or webbing or any other solid or semisolid fabric or other material used to comprise a device that is used to take or harvest marine life. Upon the arrest of any person for violation of this subsection, the arresting officer shall seize the nets illegally used. Upon conviction of the offender, the arresting authority shall destroy the nets. Any person who violates this section shall be punished as provided in s. 370.092(4). The Marine Fisheries Commission is granted authority to adopt rules pursuant to ss. 370.025 and 370.027 implementing the prohibitions and restrictions of s. 16, Article X of the State Constitution. To these ends, the Legislature has also established purpose and standards for the MFC to follow in proposing/enacting rules: Section 370.025 Marine fisheries; policy and standards. The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund shall be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. The MFC was well aware of the post amendment reduced landings, increased SPRs, and fish recovery rates when it proposed the rule herein. In promulgating the rule herein, the MFC did not conduct or commission any formal economic or sociological studies on the constitutional amendment's impact on wholesale and retail seafood markets, restaurants and consumers to date or on the proposed rule's potential further impact on these elements. It did, however, consider testimony at rule hearings and written presentations on those issues by the Petitioners and others. At the formal hearing herein, Petitioners showed the same information that had been presented to the MFC, that Florida Panhandle coastal restaurant revenues typically have dropped nearly 30 percent since the constitutional amendment, and that revenues in Panhandle wholesale fish houses have typically dropped 75 percent. There is anecdotal, but statistically imprecise, evidence that the retail market for mullet has been drastically depressed and consumer prices therefor drastically increased in the Panhandle and Jacksonville areas since the amendment, that this situation creates a greater burden on low- income consumers, particularly those low-income consumers who have, for economic or ethnic reasons, traditionally made mullet a staple of their diets, and that this situation may worsen with implementation of the proposed rule if the proposed rule further drastically reduces the availability of mullet. For the reasons set out infra., further drastic reduction in the availability of mullet is not anticipated by the MFC. MFC prepared a statement of regulatory impact or estimated regulatory costs for the proposed rule as part of its 1997 rule amendment package, based on all the evidence it had gathered. Even seine nets produce some by-catch, and some of the by-catch produced by seine nets results from small fish being gilled in the mesh of the net. Admittedly, small mesh sizes result in gilled by-catch that is pre-reproductive and smaller in size. However, seine nets, other than "purse seines," which were banned before the constitutional amendment, operate by "corralling" fish with a net that functions as a wall that captures the fish by confining them inside the net without entangling any more of them than absolutely necessary. For that reason, beach seine nets and haul seine nets, for instance, have not historically been considered to be gill or entangling nets. The MFC has historically managed seine nets differently than gill nets because of the better possibility of releasing by-catch from seine nets. The MFC's Executive Director, and expert, Dr. Russell Nelson, testified that the Agency believes the constitutional amendment does not require that there be no legitimate by-catch and further, that a complete absence of by-catch would be impossible. (TR-346). One purpose of proposed Rule 46-4.0081(2)(d) is to clarify what is a "gill net" subject to the constitutional prohibition as contrasted to a "seine net," which is not prohibited. The proposed rule also should be easier to administer and enforce because the net mesh and square footage will be easily ascertainable without regard to what specie or size fish is caught. In formulating this proposed rule, the MFC decided that the allowance for small seine nets in Article X, Section 16 of the Florida Constitution implied a functional definition. Therefore, the proposed rule amendment was designed to effectively remove existing Rule 46-4.0081(1)(g)'s exception for a larger wing mesh size from the two-inch mesh size required of the seine panel, because that exception is obsolete in light of the constitutional amendment. The functional definition of "seine nets" utilized by the MFC was nets that functioned to guide, herd, gather, or corral fish, rather than gill or entangle them. This definition had been previously codified in an existing rule.6 Based upon its interpretation of the constitutional amendment, statute, and existing rule, and based upon common historical net usage, the MFC concluded that nets designed to function primarily to gill or entangle fish could not be considered to be seine nets. Petitioners are correct that between the date of the constitutional net ban and the date of formal hearing on this rule challenge, the MFC did not conduct or cause to be conducted any tests with a 500 square foot two-inch mesh seine net. However, in formulating the proposed rule, the Commission was presented with extensive comments, technical information, and post-amendment updates of earlier surveys. Prior to first publishing its proposed rule and since, the MFC has examined the historical functions of seine and gill nets. The competent, substantial, credible evidence adduced at formal hearing is substantially the same as MFC's collected data. Historically, seine nets were very large and some were even thousands of yards in area. Prior to the passage of the constitutional amendment, commercially licensed fishermen used seine nets of many sizes and meshes. Most were approximately 600 yards long. Historically, seine nets had wings on one or both sides of the main body, which was sometimes called a "panel," "bag," "pouch," or "pocket." The "wings" were the portion of the net used to herd the fish into the main body. The wings contained larger mesh size than the main body. The fish were actually captured in the main body, not the wing portion. Historically, in Florida, the mesh size of gill nets was significantly larger than the mesh size of seine nets. Gill nets historically used to catch mullet employed stretch mesh three inches or greater. Currently, the constitutional amendment, the statute, and existing rules limit seine nets to a total of 500 square feet. Existing Rule 46-4.0081(1)(g), Florida Administrative Code, sought to be repealed, permits seines of a two-inch stretch mesh or less in the main body of the seine, and up to three-inch mesh in its wings. Due to the 500 square foot restriction, the MFC believes that a mesh size exception permitting three-inch mesh in seine wings is obsolete. Three-inch mesh in the wings of seine nets would gill larger, commercially viable mullet. There is no practical way to construct a seine with wings and a workable pocket since the entire seine net is now limited to a total of 500 square feet, but if the three-inch mesh continues to be permitted for the wings, fishermen will be able to construct 500 square foot seine nets that are 90 percent wing and 10 percent panel, thus converting what is technically a seine net into one which actually gills or entangles fish over 90 percent of the net's surface. Such a result would be contrary to any common historical understanding of what constitutes a "seine net," and contrary to the intent of the constitutional amendment and subsequent legislation. Agency staff advocated drafting the proposed rule more stringently so as to reduce the permissible stretched mesh size to a one- and one-half-inch size, but in formulating the proposed rule under challenge, the MFC ultimately proposed the two-inch stretched mesh rule based on its review of historical mesh sizes which were already in legal use. This decision was reasonable and may serve to lessen the impact of the rule change on commercial fishermen. Different species of fish behave differently, and the credible, competent evidence herein permits no blanket pronouncement on running patterns of juveniles and adult (reproductive) fish in every fish specie. There is direct conflict between Petitioners' and MFC's experts, most notably Messrs. Rudloe and Winner, on whether or not juvenile mullet, or fish generally, run with schools of adults. After consideration, Mr. Winner's opinion that juvenile mullet typically do not run with their elders, at least in roe season, is accepted.7 Also, the greater weight of the credible evidence is that all types of fish small enough to be entangled in a two-inch mesh would not generally be found with adult mullet. Petitioners contend they cannot determine what other types of fish are running with the adult mullet they target and cannot guarantee that some juvenile mullet and other fish would not be among the inadvertent by-catch netted when they target adult mullet. Only fifty percent of 11-inch (legal size) mullet are sexually mature, anyway. Upon the testimony of MFC's experts, Mr. Winner and Dr. Nelson, and upon testimony by various commercial fishermen, it is found that fishermen can target adult mullet based on the way adult mullet move, jump, and make wakes. It is not commercially feasible to target any illegal, juvenile fish. In 1993, MFC promulgated rules which varied mesh size for mullet and other species. These rules were intended to harvest targeted species of only appropriate age and size. Studies before the 1993 rule amendments showed that the vast preponderance of mullet taken in a two-to two-and-a- quarter-inch mesh seine were 13 inches and 95 to 98 percent were legal size. In 1993, the two-inch mesh for the seine panel/pouch was created by rule, and has remained in effect since then.8 In 1997, in formulating the proposed rule here challenged, the MFC concluded, on the basis of updated studies and testimony and presentations before it, that although the proposed rule may result in more juvenile fish being caught in the smaller mesh, or even gilled therein, the proposed rule amendment will ultimately result in fewer total fish being gilled. The MFC is prepared to accept this result because only a small proportion of juvenile mullet or other fish encountered will actually be gilled, no dangerous level of unnecessary killing or waste will occur, and the rule will enhance the overall fish population recovery effects already in progress. Even with a small increase in the number of juveniles being gilled under the proposed rule, the MFC expects landings of legal-size mullet to increase due to the recovery of fish populations in progress and due to fishermen acquiring even more skill with the 500 square foot nets, which size is still relatively new. Some commercial fishermen testified that it is the existing reduced square footage (500 square feet) factor alone which causes adult mullet to jump the net, not the proposed mesh size reduction. However, the MFC has no authority to alter this constitutional requirement. Some commercial fishermen testified that they could fish mullet commercially with the existing five hundred square foot nets as long as the nets still had three inches or larger mesh in their wings. A video tape showing several sets (strikes) or parts of sets of a net was introduced in evidence. It showed some fish jumping the net and other fish gilled in the net. It purportedly showed use of a net which would be legal under the proposed rule, but testimony to that effect was contradicted by one of the same witnesses when he gave specific dimensions of the net showing it to actually be considerably larger than the 500 square foot requirement which the MFC has no authority to alter. (TR-270) The video tape was not made in roe season. Its net's deployment in some sets was arguably unusual for this type of fishing. The number of fish gilled was low. Accordingly, although the video tape might support the theory that size of mesh is one factor in causing legal-size mullet to jump a net, it does not present credible evidence that legal-size mullet cannot be caught with a 500 square foot net which would be legal under the proposed two-inch rule or even that legal mullet can now be caught with a larger net. It certainly does not establish that the proposed rule will waste more juvenile fish than are being wasted under the existing rules. However, upon the evidence of current landings, it is found that legal-size mullet can be caught with the nets now legal. It is further found, upon the evidence as a whole including that of Dr. Nelson and Mr. Winner, that use of a single seine net which would be legal under the proposed rule, that is, one which is made of only two-inch mesh throughout its total 500 square foot surface, is not commercially feasible for fishing mullet, except possibly in roe season. Nonetheless, there are at least two ways the new net could be used commercially. It is possible for two fishermen working together to deploy two separate 500 square foot, two-inch mesh seine nets to capture and corral legal size mullet. It is possible to use two legal seine nets in the same way with a third person manning a cast net. The seine nets would be channeling, or herding, the fish, and the cast net would be gathering or dipping them out of the water. Under this type of operation, neither type of net would entangle or gill fish. According to MFC's Director Nelson, the MFC considered these two methodologies of fishing for mullet with more than one net to be both legal and commercially feasible when it proposed the challenged rule.9 Use of a single seine net which would be legal under the proposed rule is commercially feasible for catching fish other than mullet. This proposed gear rule applies equally to all unit stocks of fish and affects all fisheries, some of which are still overfished and some for which there is incomplete data to determine the status. The proposed rule compliments previously adopted fishery management plans and will help recovery of unmanaged species. The rule does not conflict with any federal management plan. The proposed rule has no relationship to quality control for fish coming to market. The proposed rule applies to everyone and provides no individual or corporation an excessive share of fishery resources.
The Issue The issues in this case are those announced by the Administrative Complaint brought by the Petitioner against Respondent claiming that the dirt drive entrance to the Ugly Duckling Rent-A-Car at 2555 U.S. 1 South, St. Augustine, Florida, is an unpermitted drive connection used for commercial purposes. It is further alleged that it is, by its nature, a residential driveway that is used in a commercial endeavor and that it does not meet design standards. The stated authority for these accusations are Sections 335.187 and 335.1825, Florida Statutes.
Findings Of Fact On October 2, 1979, Leroy E. Wall, Jr., and his wife Freda purchased the property which is in dispute in this case from Alex Hein and Virginia Hein, his wife. That property is located in St. Johns County, Florida, and its dimensions include approximately 300 feet of frontage on U.S. 1, also known as State Road 5. The frontage runs roughly north and south. The east-west depth of the property is approximately 350 to 360 feet. U.S. 1, for about 20 years, has been a four-lane road at this location with a median separating the northbound and southbound lanes. The property in question is on the western side of U.S. 1 and the southbound lane of that highway passes in front of the property. Petitioner holds a right-of-way from the white line on the shoulder of the road 38 feet inward. It has maintenance responsibility for a five foot strip inward from that white line. At the time Mr. Wall and his wife purchased the property in question, there was a residence located on the property with a free standing garage. Respondent's Composite Exhibit No. 1 admitted into evidence contains a copy of the warranty deed from the Heins to Mr. Wall and his wife. It also shows a description of the property through a survey done on November 14, 1984. It was the intention of Mr. Wall to have the property rezoned from residential to commercial. In addition, he had intended to build a commercial building and to seek approval of Petitioner for a driveway permit associated with that commercial venture. That driveway permit was approved on November 1, 1979. A copy of the driveway permit may be found in Petitioner's Composite Exhibit No. 3 admitted into evidence. The date of approval of that permit is November 1, 1979. The driveway permit and a small drawing reflect the two paved driveways associated with the intended commercial building. It shows frontage in the amount of 165 feet as opposed to the 300 foot expanse that constituted the entire parcel which Mr. Walk and his wife had bought from the Heins. Nonetheless, Mr. Wall is confident that the Petitioner was made aware of the entire 300-foot expanse when he sought the permit. His recollection of those events is credited. As reflected in Respondent's Composite Exhibit 1, a report and recommendation was made by the zoning board suggesting to the Board of County Commissioners that they approve the rezoning of the subject property. That recommendation dates from December 10, 1979. The zoning change was effected. The residential building and detached garage was used by a tenant of Mr. Wall's who was in the import business. Subsequent to that time Vernard W. Fletcher, Jr., who owns Ugly Duckling Rent-A-Car became a tenant at that location on July 1, 1983. The commercial building that had the two paved drives permitted on November 1, 1979 has four tenants. The dirt driveway which enters U.S. 1 from the residence with the detached garage has been there from the time of the purchase by the Walls from the Heins until the present. Mr. Fletcher has described the peak usage of that driveway as 20 trips per day in 1987. In the period July 1, 1988, through June 15, 1989, the number of trips has dropped to 15 cars a day. Mr. Fletcher's explanation of the number of trips is accepted. July 1, 1988, through June 15, 1989, describes the period from the advent of Section 335.187, Florida Statutes, (1988), until the Administrative Complaint was brought against the Respondent on June 15, 1989, as described in the statement of the issues. As Mr. Fletcher and Mr. Wall both explain, the dirt drive is used mostly for ingress. One of the paved drives associated with the commercial building is used for egress onto U.S. 1. On March 16, 1989, Respondent received notice from the Petitioner that the dirt driveway was an unacceptable access point onto U.S. 1. This correspondence was received by Mr. Fletcher on March 17, 1989. It sets forth the same basis of concern as announced in the Administrative Complaint which was prepared on June 15, 1989. Marshall Sander who is a permit engineer for the Lake City District of the Petitioner testified at the hearing. Although he did not confirm in absolute terms the expectation of the Petitioner as to the type driveway that it would accept for permitting, it is clear that some other form of driveway than the present type is contemplated. Mr. Sander's remarks to Mr. Wall made it obvious that the Petitioner is more likely to look with favor on a paved driveway with deceleration lane than any other form of improvement. This would cost as much as $15,000. A not-to-scale drawing of the immediate area is found as Petitioner's Exhibit No. 5. It depicts the commercial building with its two paved driveways and the Respondent's site with its dirt driveway. It also shows the approximate location of a shopping plaza which was under construction and expected to open in October 1989, which is 500 feet north of the property in question. That shopping center is located on the same side of the road as the property that is at issue. There is a traffic signal at Lewis Point Road and U.S. 1, the location of the new shopping center. That traffic control device protects automobiles which are exiting the location of the Respondent and the commercial properties adjacent to that location which are leased by Mr. Wall. Petitioner's Exhibit No. 7 is a series of photographs which depict the site in question with descriptions of the exact nature of those photographs specifically set out. Petitioner's Exhibit 8 also contains a series of photographs. The first photograph is one of Moultrie Plaza which has a Publix food store and 14 other tenants with the possibility of 8 additional tenants in the future. This shopping plaza opened in January 1989 and is approximately two miles south of the Respondent's business location. The shopping plaza which is immediately north of the location in question has a Food Lion grocery store, a McDonald's restaurant, a bank and several other retail shops. It is located on the same side of U.S. 1. Petitioner's Exhibit No. 9 contains other pictures associated with the basic location of the business in question. Mr. Sander's concern about the use of the dirt driveway in a commercial application relates to the edge of pavement drop-off and the formation of ruts that develop with the kick-out by wheels that spin as cars are leaving or pulling into the location and under braking, and the fact that they slide and move the gravel material in the dirt driveway. In his analysis this creates a possible safety hazard. There is no evidence that any accidents have ever occurred because of the use of this dirt driveway or any safety problem associated with its use. Mr. Fletcher and Mr. Wall have no recollection of such events and the Petitioner presented no indication that accidents or other safety problems had occurred. Mr. Sander also was of the opinion that Mr. Wall should have revealed the existence of the additional 135 feet of frontage when the 165 feet of frontage associated with the commercial building was set out in the attachment to the permit for the two paved driveways that have been mentioned before. Again, the facts are found that the 300 foot frontage was made known to the Petitioner based upon the testimony given by Mr. Wall. Section 385.187(1), Florida Statutes (1988), provides that unpermitted connections to the state highway system, to include U.S. 1, in existence before July 1, 1988, which had been in continuous use for a period of one year or more do not require permits. The dirt driveway was in existence before July 1, 1988, and was in continuous use for a period of one year or more. However, that same section speaks in terms of the ability of the Petitioner to require a permit in those instances where the connection undergoes a significant change in the use, design, or traffic flow of the connection or of the state highway that provides access. Beyond July 1, 1988, the use, design, or traffic flow of the driveway connection has not significantly changed. The use and design of the state highway has not significantly changed. The point of dispute is whether the traffic flow on that state highway has changed in a significant way. Notwithstanding the existence of two residential developments known as St. Augustine South and St. Augustine Shores, the two shopping plazas that have been described and other activities in the general vicinity, it was not shown that the traffic flow had increased in a significant way beyond July 1, 1988, up until June 15, 1989, the point at which the administrative complaint was brought or for that matter up until the time of the final hearing. Moreover, as stated, there is no suggestion that the driveway has presented a safety hazard in that time frame, particularly not when taking into account the preference to use the paved drives associated with the commercial building in the egress. That usage is facilitated by the fact that some of the equipment that is being rented is brought up one of the paved driveway exits from an area behind the commercial building. This set of circumstances is considered in light of the fact that the traffic signalization at Lewis Point Road and U.S. 1 protects a person entering U.S. 1 southbound.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered which dismisses the Administrative Complaint. DONE and ENTERED this 19th day of December, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of December, 1989. APPENDIX CASE NO. 89-3898 Petitioner's Facts Petitioner's facts in paragraphs 1, 2, 3 and 4, are subordinate to facts found. Paragraph 5 is contrary to facts found. Paragraph 6 is accepted but it is not essential that it be found as a fact. Paragraph 7 is subordinate to facts found. Respondent's Facts Respondent has described facts it wishes to have found in two categories. Those categories are a preliminary statement of facts not in dispute and a category associated with the issues deemed to be in dispute. These suggested facts are subordinate too the facts found in the recommended order. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Frederick L. Rice, Esquire 5611 St. Augustine Road Jacksonville, Florida 32207 Ben Watts, Interim Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact David Gangelhoff operates a boat sales and service facility on property he owns at 405 North Fort Harrison Avenue. This property is divided into two parcels by Hart Street, which dead end at the back of a building facing North Fort Harrison. For the past few years the Appellant has been buying lots in two parcels separated by Hart Street and intends to acquire all the lots in the entire two blocks. After acquiring all of the lots he proposes to request the City to vacate Hart Street. Appellant currently owns the property abutting both sides of Hart Street and the setback requirements for Hart Street will disappear if the City abandons its right- of-way over Hart Street. Building and zoning regulations require a 17' 3" side setback on a building siding on Hart Street, a 3' buffer zone between parking and the property line, landscaping in the 3' buffer zone between the parking area and the north property line, and a 3' setback in the fence parallel to the south property line along Hart Street. Variances (1) and (4) involve the property line abutting Hart Street and variances (2) and (3) involve the north property line of the property where parking is to be provided. Appellant apparently stores some of his boats in an open area toward the back of the property. He proposes to erect a one-story building on a portion of the property north of Hart Street and to construct the south side of this building one foot from the property line abutting Hart Street. This will provide more inside storage. A proposed canopy area along the main building on the north side of the property is to be used for additional storage and to provide better security in the high crime area in which this business is located. The property is zoned CG. The variance in setback in buffer zones for landscaping which are requested by Appellant are such that practically no setback would remain nor would there be a buffer zone if the variances are granted. Allowing Appellant use of his property to the boundary lines would be beneficial to Appellant's business as it would provide a better facility with more enclosed space to provide security for the boats and equipment. No evidence was presented that other property owners in the vicinity have been granted variances similar to those denied to Appellant or that the special conditions and circumstances exist which make this property unique so that denial of the variance would create an undue hardship on the Appellant.
Findings Of Fact Petitioner proposes to erect a hyacinth fence at the entrance to Canal number 4 in Lake Istokpoga. The fence will consist of 4' x 4' posts six feet apart extending approximately 100 feet from each marsh bank of the canal toward Lake Istokpoga with an opening at the entrance of 12 to 14 feet to allow boat access. The fence will be attached to these 4' x 4' posts and extend about 2 feet below the surface of the water to prevent hyacinths from entering the canal and blocking navigation. Three other canals leading into Lake Istokpoga have been equipped with hyacinth fences and to date no problems have occurred. The fence does not extend to the bottom of the lake, is of a type approved by DER and will not materially effect the movement of water into and out of the canal. There is less water turnover in the canals than in the lake. This results in the canals having less oxygen than the lake and therefore are in a more stressed condition. As a result, from an ecological point of view, it is preferred to keep the hyacinths in the lake as opposed to the canals. Hyacinths which die and sink to the bottom take from the water oxygen that is needed to sustain aquatic life. From a navigational standpoint the 12 to 14 feet opening in the proposed fence is adequate for the boats that use the lake and canal. Erection of the fence will have no adverse effect on the ecology or biological resources of the area, and will result in keeping out many hyacinths that otherwise would enter the canal.
The Issue The issues are (1) whether a driveway connection on Respondent's property in Auburndale, Florida, is subject to closure because it poses safety concerns, and (2) whether a second driveway connection on Respondent's property should be modified because it fails to meet current access management standards.
Findings Of Fact A. Background The Department is the state agency responsible for regulating access between state roads and private property abutting those roads. See §§ 335.18 through 335.188, Fla. Stat. State Road 544 is a part of the state highway system. Since 1998, Respondent has owned a small, irregularly shaped parcel of property located at 502 Havendale Boulevard (State Road 544), Auburndale. The 0.46-acre parcel lies on the southeast corner of the intersection of State Road 544 and 42nd Street Northwest. Commercial establishments are located on the other three corners. In December 1998, Respondent leased the property to a tenant who operates Townsend Motors, a used car lot. The business has operated continuously at that location since that time. Aerial photographs reflect the lot has a capacity of around 30 or so vehicles. Most vehicles are displayed where the triangle-shaped lot comes to a point at the intersection and along the side of the lot facing State Road 544. Other vehicles are parked throughout the middle or rear of the lot. They are rearranged from time to time to enhance sales. To replace cars that are sold, the tenant typically buys a few cars at a time, which are delivered by a tow truck. Auto carriers and large trucks with trailers are not used to deliver vehicles. On the "rare" occasion in the past when a "big transport" made deliveries, the truck used the parking lot in a nearby Publix store to the east. State Road 544 is classified as a class 7 road. See Fla. Admin. Code R. 14-97.003(1), Table 2. That classification is assigned to roads where adjacent land is developed to the maximum feasible intensity and roadway widening is limited. See Fla. Admin. Code R. 14-97.003(2). The regulation provides that a driveway connection on a class 7 road must be at least 125 feet from an intersection and at least the same distance from other connections. This amount of spacing reduces driver confusion and the potential for rear-end collisions. Respondent's parcel has two driveway connections, less than 125 feet apart, facing State Road 544. The first connection is approximately 60 feet east of the intersection and is known as the western connection. The second connection lies further east and is known as the eastern connection. A third driveway connection is located on the western side of the parcel facing 42nd Street Northwest. Driveway connections on state roads must be permitted or grandfathered. See § 335.1825, Fla. Stat.; Fla Admin. Code 14-96.011(3)(a). Neither connection on State Road 544 is permitted. A driveway is grandfathered if it was in existence prior to July 1, 1988, when access permits were first required. See Fla. Admin. Code R. 14-96.011(3)(a). Because the driveway connections were in place before 1988, they qualify for that status. To retain that status, however, a driveway must be consistently used by the owner. If use is discontinued for a period of one year or more, the use is considered abandoned. See Fla. Admin. Code R. 14-96.005(2)(c). If a driveway loses its grandfathered status through abandonment, the owner must apply for an access permit; otherwise, the driveway is subject to closure. A connection that retains its grandfathered status may still be modified if safety or operational issues exist. See Fla. Admin. Code R. 14- 96.011(4)(b)(the Department may modify a grandfathered connection "if such modification is determined to be necessary because the connection would jeopardize the safety of the public or have a negative impact on the operational characteristics of the state highway"). The parties agree the eastern driveway is grandfathered and has been consistently used by the tenant since 1998. There is a dispute over the status of the western driveway. The Department must allow owners of private properties adjoining a state road to have "reasonable access" to and from their property. See § 335.18(2)(a), Fla. Stat. As a general rule, limiting the number of driveway connections promotes better traffic movement and an increased level of safety and mobility for the system as a whole. To determine the number of connections necessary to establish reasonable access, the Department considers the projected connection and roadway traffic volumes, the type and intensity of the land use, the access management classification of the state road, and the standards for that classification. See Fla. Admin. Code R. 14-96.002(25). The Intersection Project The genesis of this dispute is a safety project (Project) at the intersection of State Road 544 and 42nd Street Northwest adjacent to Respondent's property. The Project was initiated after the Department received pedestrian complaints concerning safe travel across the intersection to access retail and food stores and a lack of crosswalks that comply with the Americans with Disabilities Act (ADA). The Project is only 0.038 miles in length and is limited to improvements at the intersection and the installation of sidewalks adjacent to Respondent's parcel and the three other corner commercial properties. There will be minimal impact to current vehicular patterns, and no increase in capacity is expected. Part of the design effort for the Project included an evaluation of existing driveway connections for potential modifications that will improve traffic safety or traffic operations on the roadway. This evaluation was limited to driveways on State Road 544, as the Department has no jurisdiction over driveways on 42nd Street Northwest, a local road. During the planning process, the Department noted that the western driveway is less than 125 feet from the intersection, violates spacing requirements, and raises safety concerns. Accordingly, the Department proposes to remove it, "saw it over," and install type F curb and gutter along the roadway. To comply with access management standards for class 7 roads, the Department also proposes to narrow the width of the eastern driveway from around 60 feet to 36 feet and "widen the wings somewhat" to allow larger vehicles to swing into and out of the car lot. (Wings are the sides of the driveway that slope down from the top of the curb to the street level.) No changes to the driveway facing 42nd Street Northwest are proposed, and no other driveways on State Road 544 near the intersection will be modified. The Department determined that no other practical alternatives to this action exist. Based on its evaluation of the property, the Department concluded that one direct connection on State Road 544 and an indirect connection on 42nd Street Northwest, a local road, provide reasonable access to the property. The Department intends to install new pedestrian signal poles and increase access to a nearby bus stop. The Project includes connected sidewalks for the four commercial properties on the corners of the intersection and enhanced special emphasis crosswalks that are designed to comply with the ADA and connect to the existing Publix sidewalk to the east. The high-visibility crosswalks, pedestrian signalization improvements, and removal of the western driveway will improve traffic movement through the intersection and enhance motorist, bicycle, and pedestrian safety. A Department Safety Office Benefit Cost Analysis revealed there were a total of 60 rear-end or angle crashes at the intersection during the five-year period 2010 through 2014 and that some could have been prevented with better signage and signals. The study projects 11 crashes will be avoided over the upcoming five-year period once the Project is completed. Besides reducing angle and rear-end crashes at the intersection, the proposed modifications will improve safety and operational conditions for pedestrians and motorists who will have greater connectivity to adjacent commercial properties. Respondent's Objections Respondent raises a number of objections to the Department's proposed action. She contends the western driveway is not abandoned, and even though it fails to meet current spacing requirements, it should not be closed; the proposed modification to the eastern driveway is not warranted by safety or operational concerns; the Department violated a number of statutory provisions during the process leading up to the issuance of the Notice; the proposed action will deny her and the tenant reasonable access to the property; and the changes will reduce the value of the property. The Western Connection To comply with insurance requirements, in 1998 the tenant erected bollards (short vertical posts embedded in the driveway) around most of the parcel to restrict access to the premises. Among other locations, bollards were placed along the entire back side of the western connection, blocking off vehicle access through that driveway. Bollards were also placed on roughly half of the back side of the eastern connection, leaving less than 30 feet open to allow vehicles to enter and exit the premises. Even though the bollards remained in place for almost 20 years, Respondent considers them nothing more than temporary fixtures, as they could be removed at any time by sawing them off at ground level or pulling them out of the concrete. The bollards remained in place until shortly after the Notice was received by Respondent in early January 2017. They were then removed by the tenant from the western driveway (and other areas). The tenant denies the Notice triggered their removal and maintains they were removed to provide "extra room for the FedEx and stuff like that to get in." He added that his current insurance company no longer requires bollards for security purposes. The Department contends the western driveway connection was abandoned because bollards blocked vehicle access through the driveway from December 1998 until January 2017. The tenant's testimony confirms this assertion. The tenant admits he has "not frequently [been] using the westernmost driveway," but maintains the connection was never abandoned, as Fedex trucks and the mail carrier regularly parked on the driveway apron, which lies between the roadway and the bollards. Emergency responders also use the apron when responding to accidents at the intersection, and disabled vehicles traveling eastbound on State Road 544 are pushed onto the apron. The bottom line is that even though the apron may have been used, the driveway itself was not, and the connection was basically used as a "pull-off." In fact, the tenant acknowledged that until January 2017, except for customers who used the parking lots of adjacent businesses located south of the parcel, all other customers used the eastern connection to access the property. The evidence supports a finding that, even if the car lot has remained in business continuously, and Respondent did not intend to abandon the driveway, for the reasons stated above, it was effectively abandoned for more than one year. Because the western driveway is only 60 feet from the intersection and violates spacing standards, it is subject to closure based on safety concerns. Without closure, additional traffic will enter and exit the car lot, there will be less driver reaction time for vehicles to stop, and it will increase the potential for more pedestrian injuries and vehicle crashes. The Eastern Connection The eastern driveway is 58 feet wide when measured at the back of the property line. Until January 2017, less than 30 feet were usable because bollards blocked the remainder of the connection. The maximum width for a class 7 driveway connection is determined by the number of vehicle trips per day that enter a property and whether the connection is in a rural or urban location. Under current design standards for urban locations, a 24-foot driveway connection is typically allowed. See Dep't Ex. 15. Assuming a large volume of traffic entering or exiting the driveway, a maximum of 36 feet may be permitted. Id. Although there is no evidence that a large volume of traffic enters or exits the premises, after speaking with the owner's representative, Mr. Combee, the Department agreed to increase the width from 24 feet to 36 feet and widen the sides (wings) to make the driveway more accessible by customers and vehicles making deliveries. By comparison, the nearby Publix store has a 24-foot connection to State Road 544, although it also has several indirect connections on the local streets. The modified connection is of sufficient length and size for vehicles to enter and exit the premises. Other Objections Notice Respondent contends the Department did not comply with section 335.199(1), Florida Statutes, before issuing the Notice. That subsection provides as follows: Whenever the Department of Transportation proposes any project on the State Highway System which will divide a state highway, erect median barriers modifying currently available vehicle turning movements, or have the effect of closing or modifying an existing access to an abutting property owner, the department shall notify all affected property owners, municipalities, and counties at least 180 days before the design of the project is finalized. The department's notice shall provide a written explanation regarding the need for the project and indicate that all affected parties will be given an opportunity to provide comments to the department regarding potential impacts of the change. Subsection (3) of the statute also requires at least one public hearing in the jurisdiction where the project is located. The Department has always construed this provision as applying only to large projects that involve an expenditure of "upward of a million dollars" and take out or block medians, remove turn lanes, or reconfigure intersections in conjunction with a modification or closure of a driveway connection. Because the Project entails the expenditure of $119,936.00, and only new curbs, sidewalks, striping, and pedestrian signals are contemplated, the Department considers it a "very limited scope" project and one that does not implicate the statute. For small projects such as this, the Department provides preliminary notification to the property owner and tenant, if any; a written notice setting forth the proposed agency action and the reason for the changes; an opportunity for the owner to meet with Department representatives to express concerns; notice to the affected local governments; and ultimately an administrative hearing, if one is requested. This process complies with section 335.1825(3), which only requires "reasonable notice" to the owner before closing an unpermitted connection. Before the Notice was issued, oral notice regarding the Project was given to the tenant by a Department representative. During the meeting, the tenant told the representative that he "didn't mind" if the western driveway was removed. Also, a Department representative spoke by telephone with Mr. Combee before the Notice was issued, but Mr. Combee says he was under the impression the Department was only seeking to close the connection on 42nd Street Northwest. An on-site meeting with Mr. Combee and his counsel was conducted in February 2017. Based on concerns expressed by Mr. Combee, the Department agreed to increase the width of the eastern driveway from 24 to 36 feet and widen the wings to provide greater accessibility into and out of the lot. Besides meeting with the tenant and Mr. Combee, the Department informed the City of Auburndale and Polk County about the intersection project and asked them whether any comments had been received from the public regarding the intersection. Assuming arguendo that section 335.199 applies to every project involving the closure or modification of a driveway connection, regardless of its size, there was no showing that Respondent was prejudiced by the Department's failure to comply with all requirements of the statute. Lack of an Engineering Study Respondent contends the Department violated Florida Administrative Code Rule 14-96.011(4)(b) by failing to conduct a formal engineering study to substantiate the safety and operational concerns for closing and modifying the connections. In lieu of a signed and sealed engineering study, the Department performed a Safety Cost Benefit Analysis documenting the five-year crash history at the intersection. The study also includes an engineer's estimate of the type and cost of specific improvements planned to improve the safety of motorists and pedestrians at the intersection. See Resp. Ex. 5. Nothing in rule 14-96.011(4) or (5) requires that a formal engineering study be conducted before closing an unpermitted connection or modifying a grandfathered connection. In fact, the rule cited by Respondent provides the "problem may be substantiated by an engineering study signed, sealed, and dated by a professional engineer registered in the State of Florida." (emphasis added). Therefore, both driveways are subject to removal or modification without any type of formal study being conducted. Here, the Department relied on a study of the crash history at the intersection, access management standards for connections on class 7 roadways, and safety concerns expressed by members of the public. These measures are adequate to support the Department's proposed action. Reasonable Access Respondent contends the Department's proposed action leaves her without "reasonable access" to the property. To support this contention, her engineering expert opined that both driveways on State Road 544 are necessary in order for large trucks making deliveries to enter and exit the lot. The engineer assumed incorrectly, however, that semi-trucks and trailers now access the property to make deliveries, and a 36-foot driveway will be too small to accommodate that type of vehicle. He also opined that large trucks cannot access the property through the 42nd Street Northwest connection because a building is located in the middle of the parcel and prevents them from being driven across the lot and exiting through the eastern connection. The expert agrees a 36-foot driveway provides reasonable access for automobiles and small trucks. The evidence shows that replacement vehicles are normally delivered by a tow truck hauling no more than one or two at a time and large semi-trucks and trailers do not make deliveries at the property. Assuming that the mail carrier or FedEx wish to continue parking where the apron now sits while they deliver the mail or a package, they can do so by pulling over the six-inch curb and parking on the grass. The evidence supports a finding that one direct access point on State Road 544 and one indirect access point on 42nd Street Northwest provide reasonable access to the property and result in safer and more efficient access to the state highway system. Economic Concerns Respondent contends the value of her property will be diminished as a result of the closure of the western connection. However, economic injury is not a statutory consideration for closing or modifying connections, and redress for that type of injury, if any, lies in another forum. Management of Project The Department routinely allows construction project administrators who are not professional engineers to manage the day-to-day work on intersection projects such as this. While the project plans were signed and sealed by a professional engineer, who is the project engineer of record, a construction project administrator, Mr. Freeman, will take the plans and "make it a reality in the field." Respondent contends Mr. Freeman is violating section 471.003(1) by performing certain investigative, evaluating, planning, and designing activities without an engineering license. Assuming arguendo this is true, jurisdiction over that issue lies with the Florida Board of Professional Engineers and not the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order approving the closure of Respondent's western driveway and modification of the eastern driveway, as part of the Department's State Road 544 Safety Project. DONE AND ENTERED this 9th day of June, 2017, in Tallahassee, Leon County, Florida. S 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 9th day of June, 2017. COPIES FURNISHED: Michael J. Dew, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Tom Thomas, General Counsel Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 (eServed) Richard E. Shine, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 (eServed) David W. Holloway, Esquire David W. Holloway, P.A. 13100 Park Boulevard, Suite B Seminole, Florida 33776-3539 (eServed)
Findings Of Fact At all times material hereto, Respondent, Dean R. Stewart, held real estate license number 0172552 issued by Petitioner, Department of Professional Regulation, Board of Real Estate. He was employed as a salesman for Don Capin, Inc. a real estate firm located at 3001 Salzedo Street, Coral Gables, Florida. In March, 1977, Respondent and one Raymond W. Romeo purchased a parcel of property located at 1720 Wa-Kee-Na, Coconut Grove, Florida, for approximately $65,000. The parcel consisted of a large two-story house built in 1930 and an adjoining vacant lot. The vacant lot was later sold by Stewart and Romeo to a builder who wished to construct a new home. Respondent began a substantial restoration of the older house shortly after the parcel was purchased and eventually spent approximately $100,000 in modernizing and repairing the house. The entire first floor was torn out and replaced with new walls, windows, bathrooms, kitchen and electrical wiring. The house was repainted inside and out, recarpeted and landscaped. A swimming pool was installed in the back yard. The studs and plates on the second floor were also replaced and the bathrooms and kitchen modernized. An associate of Don Capin, Inc. described the list of things done to the house as incomprehensibly large". In March, 1979, Respondent contracted with Cooper Roofing, Inc. to "reroof" the house. According to the terms of their agreement dated March 12, 1979, Cooper was to perform the following work: Remove roof to sheating and hauling all trash away replacing rotten lumber where needed, using 30 lbs. felt in cap 12 on 12. Gravel stop around edges nail every 8" mopping on 2-15 with hot asphalt strip out with 1, 6" and 1, 9" 15 lbs felt flood coat and gravel, on top part only. On tile remove roof to locations of leaks re- pairing and relaying tiles back. gravel roof carries four (4) year guarantee. This roof is water tight with no evidence of leaks at this time. Price $1,400 /s/ Lonnie Cooper The main portion of the roof consisted of a large flat gravel area with parapets; the remaining area was made up of several smaller roofs, one covered with barrel tile and the other two with gravel. The two small gravel roofs were on the lower deck where the entrance to the house is located. Cooper reroofed the main gravel area and replaced missing tile on the small tile roof. However, notwithstanding the contract, he did not check the three smaller roofs for leaks. After the job was completed, he certified that the roof was in "satisfactory condition with no evidence of leaks at the time of inspection. (Petitioner's Exhibit 14). When the work was performed, Stewart believed that approximately 80 percent of the entire roof was being replaced and that the work was guaranteed. Stewart later repainted the small tile roof to improve its appearance. At the hearing, representatives of Cooper Roofing, Inc. agreed with Stewart that the area replaced represented about 80 percent of the entire roof. In April, 1979, Stewart and Romeo decided to sell their property. They listed the home with Respondents's employer, Don Capin, Inc., with an asking price of $275,000. The realtor accepted the listing knowing that the restoration project on the house was still underway, and was not yet completed. On April 18, 1979, Stewart gave the realtor an information sheet from which the firm prepared a brochure for inclusion in the Coral Gables Multiple Listing Service. The brochure described or stated the property's location, legal description, lot size, year built, improvements, taxes, price, terms, and procedure for inspection. It also included the following information: First Floor consists of 2 Large Apts: 3 Bedrooms 2 Baths, Large Living Room, NEW KITCHEN. 2 Bedroom 1 Bath, Living Room, NEW KITCHEN. Baths on First Floor are NEW, NEW ROOF, NEW CARPETING. NEW BLACK LAGOON POOL with Wood DECKING, Circular Drive, Entire Property is Walled In for Privacy Over 5000 Square Feet. (Petitioner's Exhibit 3) The listing included a proviso that it was made subject to omissions, errors and prior sale without notice. After reviewing the brochure several weeks later, Stewart noted a number of errors. Thereafter, on May 14, 1979, be prepared a corrected listing. In it, he changed the year the house was built from 1928 to 1930, modified the lot size from 90' x 120' to 89' x 122' and advised that the purchaser must qualify for assumption of the mortgage and be subject to escalating interest rates. (Petitioner's Exhibit 5). John F. Phillips, a salesman at Don Capin, Inc., received an inquiry concerning the property in May, 1979, from one Shirley Deitz, who had read an advertisement in the Miami Herald. Prior to this he had shown the house to only one other prospective buyer. Phillips took Dietz and her late husband to the property where they met Stewart. There Phillips accompanied Dietz and Stewart on an inspection of the house while Stewart explained the work done in the restoration project, including those areas that were not finished. During the inspection, Phillips and Dietz noted several items requiring repair. As is pertinent here, they included sagging and water-damaged ceilings in the living room, the upstairs hall, and above the kitchen sliding door. Stewart readily acknowledged that the ceilings had been damaged by a leaking roof, but advised the roof had been recently replaced. He also agreed to repair the sagging ceilings, and other items, prior to closing. Stewart claimed he told Dietz that only the parapet roof had been replaced; Dietz did not recall this, and Phillips was not privy to their conversation. Although the brochure stated that the entire property was "[w]alled in for privacy", there was no fence or wall on its west side. At the time of inspection, the property was enclosed on three sides by a concrete wall in front, and wooden fences in the back and on the east side. The missing wall was obvious to all, and Stewart made no effort to conceal it. In fact he agreed to construct a fence in the missing area prior to closing which was acceptable to Dietz. Stewart told her he intended to construct a wooden fence rather than a wall so that it would be compatible with the fences on the other two sides of the house and decking on the rear. There was no objection by Dietz. When the fence was constructed, it lay slightly over the property line and on the adjoining neighbor's property. This was caused by a water pipe which lay under the property line and required the foundation and fence to be placed beyond Stewart's property. Dietz executed a contract for sale and purchase on May 19, 1979. After an initial offer was rejected, the parties finally agreed upon a sales price of $225,000. The contract provided that: [s]ellers shall give credit at closing (to) repair ceilings in living room and hall upstairs, repair wall above sliding glass in upstairs kitchen, complete fence to west, property line, resurface driveway, and paint steps and porch to upstairs apartment. Prior to closing, Stewart repaired the ceilings, resurfaced the driveway, painted the steps and porch, and completed the fence as required by the contract. On or about Augusta 15, 1979, a closing was held on the property. Both parties were represented by counsel. Just after the closing, Respondent orally advised Dietz that the newly constructed fence on the west side was actually six inches over the property line and lay on Lot 4, her neighbor's property. Earlier that day Stewart had given Dietz a letter that she had signed and which acknowledged this problem. (Petitioner's Exhibit 7). The letter explained that a conveyance of the fence to the neighbor was necessary in order "to avoid any dispute with the owner of lot 4." However, Dietz claims she did not understand what this meant. At the closing Stewart and Romeo also executed a quit-claim deed conveying a strip of land...and fence lying approximately two feet from the east boundary of Lot 4..." to George I. and Rebecca Pope Stoeckert, who owned the adjacent property. (Petitioner's Exhibit 6). The document was prepared upon the advice of both parties' counsel although Dietz claimed it was never shown to her. Approximately one week after the closing a tropical storm swept through the Miami area and caused large amounts of rainfall. As a result, the ceiling in the house began to leak. Dietz complained to John Phillips, who told her that it should not leak because Stewart had recently had a new roof installed. Dietz attempted to contact Stewart but he was out of the State. She then called Cooper Roofing who, after a number of visits, ran a water test on her roof and found the lower deck to be leaking. This was the area that had not been replaced or repaired. Cooper advised her to get a roofing contractor to fix the leak. After finally contacting Stewart, he paid Andrews Roofing $900 to replace and repair a part of the barrel tile roof. The leaks continued and Dietz finally hired Fredrico Jaca, a roofing contractor, to inspect the roof. Jaca found the three smaller roofs needing repair and thereafter replaced "about two or three hundred feet of bad lumber" and about 500 square feet of tile. Dietz incurred the cost for making these repairs. In early November, 1979, George Stoeckert told Dietz that the fence between their property was actually 2.4 feet over his property line. He showed her a copy of a property survey to verify this. Dietz claimed this was the first time she was aware of the problem. Stoeckert then removed the fence in January, 1980, for ten months while he built a swimming pool and landscaped his yard. When it was rebuilt, the new fence was compatible with his own fencing rather than the one torn down. Stewart contended that neither the realtor or Dietz was misled. He stated he always advised that the house was rebuilt and that it had a new parapet roof, which covered approximately 75 percent to 80 percent of the roofing area. He believed the remainder had been patched and made watertight by Cooper Roofing, Inc. After learning of Dietz's dissatisfaction, he offered to re- purchase the house for what she had paid plus any moving expenses she had incurred; however, Dietz refused. Given the amount of money spent in remodeling the housed ($100,000), he considers the brochure representation that the house was "completely" rebuilt to be accurate. He further stated that he signed the quit-claim deed only after being advised to do so by both attorneys at the closing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED on this 5th day of March, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 5th day of March, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 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 this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
