The Issue The issues to be determined in this case are whether Respondents, Richard H. League and Nancy A. League, violated a Department of Environmental Protection ("Department") rule that prohibits filling in wetlands and surface waters without a Department permit; and if so, whether Respondents should pay the administrative penalty and investigative costs and undertake the corrective actions that are demanded by the Department.
Findings Of Fact The Department is the state agency having the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of chapters 373 and 403, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Title 62. Respondents own property located at 1160 River Road, Orange Park, Clay County, Florida. The property is adjacent to the St. Johns River. Sometime before 1995, pieces of concrete were placed in the water along the bank of the St. Johns River in an area that includes the shoreline of the League property, in an apparent effort to prevent or reduce shoreline erosion. On August 14, 1995, the Department issued Permit No. 102752932 to Richard League to construct a dock and replace a stormwater ditch with a covered culvert. The 1995 permit did not authorize a seawall, riprap, or other erosion control structure. A drawing attached to the 1995 permit shows the “typical concrete fill pieces at water’s edge,” which are the concrete pieces that had been placed along shoreline before 1995. The Department referred to the existing concrete pieces as a riprap revetment. Following the issuance of the permit, Mr. League discussed with Michael Eaton, Environmental Manager for the Submerged Lands and Environmental Resources Program for the Department's Northeast District Office, Mr. League's desire to restore the riprap material along his shoreline because, according to Mr. League, the concrete pieces had been displaced by storm waves and were no longer protecting his shoreline from erosion. On October 27, 1995, Mr. Eaton sent a letter to Mr. League regarding the "Existing Riprap Revetment," stating that "movement and rearranging of the riprap material along the revetment will not require a permit from the Department." The letter did not authorize the construction of a seawall or the placement of new material along Respondents' shoreline. In May 2005, the Department received an anonymous complaint that Respondents were constructing an unauthorized dock at their property. An investigation was conducted, but no major violation was found. Mr. League claims that, at the time of the 2005 investigation, he had completed 60 percent of the wall structure that is the subject of this proceeding. Mr. League also claims that the Department investigators saw the structure, but expressed no objection to the structure. However, there is no photographic or other evidence to support Mr. League's claim that the structure was observable in May 2005. No mention was made in the Department's investigative report that a seawall or similar structure was under construction at the League property. The normal practice of the Department is to describe such structures and activities in the investigative report. The aerial photographs in evidence support the Department's claim that the structure did not exist in May 2005. In April 2009, the Department received another anonymous complaint that Respondents were constructing an unauthorized structure at the shoreline. The investigation of the complaint revealed that Respondents were constructing a wall of pre-existing concrete pieces and new concrete pieces. The wall or seawall was not located at the bank, but was 12 to 21 feet waterward of the bank. It was apparently Respondents' intent to place fill behind the seawall to extend the upland property waterward. When Department employees conducted another inspection in January 2010, they found that wetlands and surface waters which had previously been observed behind (landward of) the seawall had been partially filled. At the hearing Respondents claimed that the structure qualifies as riprap. However, in their post-hearing submittal, Respondents alternately claimed that the structure was a seawall, an upland retaining wall, or riprap, depending on what rule or statute Respondents perceived as helpful in arguing that the structure did not require a permit. Florida Administrative Code Rule 62-341.021(15) defines "riprap" as "a sloping retaining or stabilizing structure made to reduce the force of waves and to protect the shore from erosion, and consists of unconsolidated boulders, rocks, or clean concrete rubble with no exposed reinforcing rods or similar protrusions." Respondents' structure is a consolidated wall, made by stacking relatively flat pieces of concrete. It has virtually no slope. It is not an unconsolidated, sloping pile of material. In addition, Respondents' structure is not placed at the bank for the purpose of retaining the existing bank. The Department contends that Respondents' structure is a seawall, which is defined in rule 62-341.021(16) as "a man- made wall or encroachment, except riprap, which is made to break the force of waves and to protect the shore from erosion." The waters of the St. Johns River reach and extend landward of the seawall constructed by Respondents. Photographs of the seawall show water stains and rafted debris at the base deposited by the waters of the St. Johns River. There was wetland vegetation behind the seawall. Mr. League admitted at the hearing that the waters of the St. Johns River sometimes move through the porous wall and fill the void between the wall and the bank. The landward extent of the St. Johns River is landward of Respondents' structure. The Department showed that the value of the time spent by Jim Maher, Matthew Kershner, and Heather Anthony to investigate this matter exceeded $1,000. However, the Department is only seeking $1,000 from Respondents for the Department's investigative costs.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate, is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints filed pursuant to Section 20.30, Florida Statutes and Chapters 120, 455 and 475, Florida Statutes and rules and regulations promulgated pursuant thereto. Respondent, Andrea S. Carollo, was, at all times material hereto, a licensed real estate broker having been issued license number 0229337. The last licensed issued was as a broker c/o Florida Leisure Realty, Inc. t/a ERA, 27427 SR 54, Wesley Chapel, Zephyrhills, Florida 33543. Randy Locke and Geoffrey Bickerdike are not and have not been licensed, during times material, in any capacity with the Florida Construction Industry Licensing Board or the Florida Real Estate Commission. During July 1990, the Beardsleys entered into a contract to purchase realty situated at 220 Debbie Lane, Lutz, Florida. Additionally, the Beardsleys executed an addendum providing for the replacement of the roof. Negotiations for the contract and sale and the contract with its addendum were prepared by Respondent's licensed real estate salesman, Frank Kinsinger, an employee of Florida Leisure. The subject property was owned by Respondent's relatives, the Barettas, (aunt and uncle) who resided in Illinois. In anticipation of the sale of their rental property, the Barettas requested that Respondent obtain proposals to repair the roof. Pursuant to their request, Respondent obtained several proposals including proposals from Sun Roofing of Tampa, Hardy Roofing & Construction, Imperial Roofing Contractors, Inc. and Geoffrey Bickerdike. The proposals from all of the companies, with the exception of Bickerdike, all claimed that they were licensed roofing contractors. Respondent was acquainted with Bickerdike who represented himself in the past as a licensed contractor. Respondent was unaware that Bickerdike was not licensed by the Florida Construction Industry Licensing Board or the local board (Pasco County). Of the proposals received from the various contractors, the Barettas selected Bickerdike's proposal to repair the roof since his proposal also included additional work that the home needed. During the period when the Respondent accepted the proposals and the Beardsleys entered into the contract, the Barettas replaced the roof and undertook certain FHA repairs that were required. After execution of the contract, Bickerdike subcontracted with Randy Locke (Locke) a subcontractor to replace the roof. A permit was not pulled for the removal and replacement of the roof. Respondent was unaware that Bickerdike had subcontracted the roofing job and the other repairs to Locke and that a permit had not been pulled for the repairs. The roofing repairs were completed prior to closing and the inspection was approved by the FHA as required by the contract and other lending requirements. Following a period of approximately two months from completion of the roof replacement and closing on September 11, 1991, no water leakage was observed in the house by the Beardsleys when they subsequently visited the home. At closing, the Barettas paid for and provided the Beardsleys with an ERA home warranty. The Barettas likewise reimbursed Florida Leisure the sum of $1,930.00 for roof repairs which had been advanced by Florida Leisure on behalf of the Barettas. Approximately two months after the closing, the Beardsleys experienced water leaks from the roof of their home. The Beardsleys called Florida Leisure to complain of the leaks. Initially, agents and employees of Florida Leisure contacted Bickerdike such that he could return to the house and correct the leaks. Bickerdike, in fact, made several attempts to correct the roof leaks and after further calls, Florida Leisure furnished the Beardsleys Bickerdike's beeper number which they used to directly contact Bickerdike. Respondent did not hear from the Beardsleys and considered the problem to have been resolved. On August 8, 1991, the Beardsleys contacted the Pasco County Building Department to report the leakage problem. On August 11, 1991, Joe Creech, a Pasco County Building Construction Inspector, inspected the roof and reported the roof replacement by Bickerdike and Locke as being unworkmanlike. Creech concluded that the roof needed to be torn off and corrected. Creech also determined that neither Bickerdike or Locke had a roofing contractors license and that no permit had been pulled for the job. On October 29, 1991, Respondent, after being advised of the problem, obtained a proposal from RFP Roofing Company, Inc. to replace the roof. During November 1991, Creech first met with Respondent to discuss the Beardsley's roof problem. At that meeting, Respondent advised Creech that he had been unaware until then that Bickerdike was unlicensed. On November 19, 1991, Al Shevy, an inspector and investigator with Petitioner, first met with Respondent in connection with the Beardsley complaint filed on October 8, 1991. At that meeting, Respondent advised Shevy that he thought that Bickerdike was responsible for the roofing problems experienced by the Beardsleys and that Bickerdike never advised him that he had gotten someone else to do the roof replacement. Respondent's proposal from RFP Roofing Company, Inc., predates his meeting with Creech and Shevy. Respondent contracted with RFP Roofing Company to have the roof replaced and other repairs done related to interior water damage and drywall for a cost of approximately $5,000.00. Respondent corrected, at his expense, the roof leak problems as soon as he realized that Bickerdike would not or could not correct the problems. The Beardsleys, although provided with an ERA home warranty, never reported their roof problems to the home warranty claims division for repairs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ORDERED this 31st day of March, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Paragraph 3, rejected, not probative and unnecessary. Paragraph 6, rejected, unnecessary. Paragraph 8, rejected, irrelevant and unnecessary. Paragraph 10, adopted as modified, Paragraph 5, Recommended Order. Paragraph 13, rejected, not probative. Paragraph 15 first sentence, rejected, irrelevant. Paragraph 17, adopted as modified, Paragraphs 15 and 16, Recommended Order. Paragraph 18, adopted as modified, Paragraph 23, Recommended Order. Last sentence, rejected as being irrelevant. Paragraph 20, adopted as modified, Paragraph 16, Recommended Order. Paragraph 22, adopted as modified, Paragraphs 20-22, Recommended Order. Paragraphs 25 and 26, rejected, not probative. Paragraph 27, rejected, speculative. Paragraph 35, adopted as modified, Paragraphs 17 and 21, Recommended Order. Paragraph 36(sic) second 35 and 36, rejected, irrelevant and not probative. Paragraph 39, adopted as modified, Paragraph 17, Recommended Order. Paragraph 40, rejected, irrelevant. Paragraph 41, rejected, irrelevant. Paragraphs 45-49, adopted as modified, Paragraph 7, Recommended Order. Paragraph 50, rejected, not probative. Paragraph 51-54, rejected, not probative. Rulings on Respondent's Proposed Findings of Fact: Paragraph 5, adopted as modified, Paragraph 17, Recommended Order. Paragraph 11, adopted as modified, Paragraphs 12 and 13, Recommended Order. Paragraph 15, adopted as modified, Paragraph 16, Recommended Order. Paragraph 24, rejected, not probative. Paragraph 27, rejected, unnecessary. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jacob I. Reiber, Esquire LINSKY & REIBER Post Office Box 7055 Wesley Chapel, Florida 33543 Darlene F. Keller, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
The Issue Whether Summary Final Order should be granted and, if so, whether Florida Administrative Code Rule 9B-3.475 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is the owner of a construction company that constructs roof-overs in the Leon County area. A roof-over is a construction method where an existing roof is covered over with an additional layer of roofing material without removing the old roof. The construction method is specifically authorized by section 1510, Florida Building Code, Building Volume (2004 as amended 07/2007), and Section 511, Florida Building Code, Residential Volume (2004 as amended 07/2007). Roof-overs are not considered roof replacements; roof-overs are considered a form of reroofing. As indicated, amended Florida Administrative Code Rule 9B-3.0475 was effective on April 6, 2008. The rule adopted, by reference, the Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the Manual). In general, Section 101 of the Manual provides the requirements for mitigation as prescribed by law. Section 201.2 provides permissible techniques for accomplishing the requirements defined by Section 101. The Manual is not part of the Florida Building Code. Section 101 of the Manual provides: Retrofits Required. Pursuant to Section 553.844, Florida Statutes, strengthening of existing site-built, single family residential structures to resist hurricanes shall be provided. Site built single-family residential structures shall mean site built family detached residential structures. 101.1 When a roof on an existing site-built, single family residential structure is replaced, the following procedures shall be permitted to be performed by the roofing contractor: (emphasis supplied) Roof-decking attachment and fasteners shall be strengthened and corrected as required by section 201.1. A secondary water barrier shall be provided as required by section 201.2. Section 201.2 of the Manual provides the methods for installation of a secondary water barrier when an existing residence is subject to work that includes a “reroof.” The term “reroof” is not defined within the Manual. The authority for Florida Administrative Code Rule 9B- 3.0475 is Section 553.844, Florida Statutes. Section 553.844(3)(a) states: A roof replacement must incorporate the techniques specified in subparagraphs (2)(b) 2 and 4. (emphasis supplied) Subparagraph (2)(b)2 states: Secondary water barriers for roofs and standards relating to secondary water barrier. The criteria may include, but not limited to. . . . Chapter 2 of the Florida Building Code, defines reroofing, for purposes of the Florida Building Code, to include roof replacement and roof-overs. However, the Florida Building Code definition of reroofing is not determinative of the meaning of the term reroof in the Manual since the Manual is not part of the Florida Building Code. Testimony demonstrated that Leon County’s Building Inspector recognized the fact that the mitigation manual was not meant to apply to roof-overs because application of the requirement for a secondary water barrier requires removal of an existing roof covering and is inconsistent with the practice of roof-overs. Additionally, the Respondents do not intend the requirement for secondary water barriers to apply to roof-overs and have stipulated to that interpretation in this hearing. While the Manual could have been more precise in the use of the terms roof replacement and reroofing, it is clear that, when read as a whole, the Manual only addresses roof replacement and does not apply to roof-overs. Such a requirement is within the Respondents’ statutory authority.
The Issue Whether proposed Florida Administrative Code Rule 14- 10.025, as amended, which describes how the "approval of wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway may be obtained" from the Florida Department of Transportation (Department), is an "invalid exercise of delegated legislative authority," within the meaning of Chapter 120, Florida Statutes, for the reasons asserted by Petitioners.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Chapter 479, Florida Statutes, regulates "signs in areas adjacent to state highways." The "[l]egislative intent with respect to [such] regulation" is described as follows in Section 479.015, Florida Statutes: The control of signs in areas adjacent to the highways of this state is declared to be necessary to protect the public investment in the state highways; to attract visitors to this state by conserving the natural beauty of the state; to preserve and promote the recreational value of public travel; to assure that information in the specific interest of the traveling public is presented safely and aesthetically; to enhance the economic well-being of the state by promoting tourist-oriented businesses, such as public accommodations, vehicle services, attractions, campgrounds, parks, and recreational areas; and to promote points of scenic, historic, cultural, and educational interest. The regulatory program established by Chapter 479, Florida Statutes, involves the Department's permitting of signs that meet established requirements. Section 479.07, Florida Statutes, is entitled, "Sign Permits." Subsection (1) of the statute, provides as follows: Except as provided in ss. 479.105(1)(e)[1] and 479.16,[2] a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee. For purposes of this section, "on any portion of the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system. "Controlled area," as that term is used in Section 479.07(1) and elsewhere in Chapter 479, Florida Statutes, is defined in Section 479.01(4), Florida Statutes, as "660 feet or less from the nearest edge of the right-of-way of any portion of the State Highway System, interstate, or federal-aid primary system and beyond 660 feet of the nearest edge of the right-of-way of any portion of the State Highway System, interstate, or federal-aid primary system outside an urban area." Section 479.07(9)(a) and (b), Florida Statutes, prescribes spacing and size requirements for Department- permitted signs. It provides as follows: A permit shall not be granted for any sign for which a permit had not been granted by the effective date of this act unless such sign is located at least: One thousand five hundred feet from any other permitted sign on the same side of the highway, if on an interstate highway. One thousand feet from any other permitted sign on the same side of the highway, if on a federal-aid primary highway. The minimum spacing provided in this paragraph does not preclude the permitting of V-type, back-to-back, side-to-side, stacked, or double-faced signs at the permitted sign site. A permit shall not be granted for a sign pursuant to this chapter to locate such sign on any portion of the interstate or federal-aid primary highway system, which sign: Exceeds 50 feet in sign structure height above the crown of the main-traveled way, if outside an incorporated area; Exceeds 65 feet in sign structure height above the crown of the main-traveled way, if inside an incorporated area; or Exceeds 950 square feet of sign facing including all embellishments. Section 479.11, Florida Statutes, enumerates "[s]pecified signs [that are] prohibited" and for which a permit may not be issued. It provides, in pertinent part, as follows: No sign shall be erected, used, operated, or maintained: Within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system, except as provided in ss. 479.111 and 479.16. Beyond 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system or the federal-aid primary highway system outside an urban area, which sign is erected for the purpose of its message being read from the main- traveled way of such system, except as provided in ss. 479.111(1) and 479.16. * * * Section 479.111, Florida Statutes, contains an exhaustive listing of those "[s]pecified signs [that are] allowed within controlled portions of the interstate and federal-aid primary highway system" and for which a permit may be issued. It provides as follows: Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in s. 479.11(1) and (2): Directional or other official signs and notices which conform to 23 C.F.R. ss. 750.151-750.155. Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of- way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation. Signs for which permits are not required under s. 479.16. Grouped together (in Sections 479.15, 479.155, and 479.156, Florida Statutes) are three statutes that each address regulation of signs by local authorities. Section 479.15, Florida Statutes, is entitled, "Harmony of Regulations." It provides, in pertinent part, as follows: (1) No zoning board or commission or other public officer or agency shall issue a permit to erect any sign which is prohibited under the provisions of this chapter or the rules of the department, nor shall the department issue a permit for any sign which is prohibited by any other public board, officer, or agency in the lawful exercise of its powers.[3] Section 479.155, Florida Statutes, is entitled, "Local outdoor advertising or sign ordinances." It provides as follows: The provisions of this chapter shall not be deemed to supersede the rights and powers of counties and municipalities to enact outdoor advertising or sign ordinances. (Sections 125.0102 and 166.0425, Florida Statutes, similarly provide, "Nothing in chapter 78-8, Laws of Florida, shall be deemed to supersede the rights and powers of municipalities and counties to establish sign ordinances," and they add the caveat (consistent with Section 479.15, Florida) that "such ordinances shall not conflict with any applicable state or federal laws.") The most recent of the statutes in the group is Section 479.156, Florida Statutes, which deals specifically with signs that constitute "wall murals." The statute was created by the Florida Legislature through the passage of Chapter 2007-196, Laws of Florida. It became law on July 1, 2007, and has remained in effect unchanged since then,4 providing as follows: Wall murals Notwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government.[5] If a municipality or county permits wall murals, a wall mural that displays a commercial message and is within 660 feet of the nearest edge of the right-of-way within an area adjacent to the interstate highway system or the federal-aid primary highway system shall be located in an area that is zoned for industrial or commercial use and the municipality or county shall establish and enforce regulations for such areas that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals consistent with the intent of the Highway Beautification Act of 1965 and with customary use. A wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration and may not violate the agreement between the state and the United States Department of Transportation or violate federal regulations enforced by the Department of Transportation under s. 479.02(1). The existence of a wall mural as defined in s. 479.01(27) shall not be considered in determining whether a sign as defined in s. 479.01(17), either existing or new, is in compliance with s. 479.07(9)(a). The same legislation that created Section 479.156, Florida Statutes, also added the following subsection to Section 479.01, Florida Statutes (which defines various terms used in Chapter 479, Florida Statutes, including Section 479.156, Florida Statutes): (27) "Wall mural" means a sign[6] that is a painting or an artistic work composed of photographs or arrangements of color and that displays a commercial or noncommercial message, relies solely on the side of the building for rigid structural support, and is painted on the building or depicted on vinyl, fabric, or other similarly flexible material that is held in place flush or flat against the surface of the building. The term excludes a painting or work placed on a structure that is erected for the sole or primary purpose of signage. The Highway Beautification Act of 1965 (Beautification Act), which is referenced in Section 479.156, Florida States, is a federal law codified at 23 U.S.C. § 131. The purpose of the Beautification Act is described in 23 U.S.C. § 131(a), which reads as follows: The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty. 23 U.S.C. § 131(b), which reads as follows, provides for a ten percent reduction of a state's share of federal-aid highway funds if the state has failed to maintain "effective control" of outdoor advertising "along the Interstate System and the primary system": Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary [of the federal Department of Transportation] determines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary system of outdoor advertising signs, displays, and devices which are within six hundred and sixty feet of the nearest edge of the right- of-way and visible from the main traveled way of the system, and Federal-aid highway funds apportioned on or after January 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, to any State which the Secretary determines has not made provision for effective control of the erection and maintenance along the Interstate System and the primary system of those additional outdoor advertising signs, displays, and devices which are more than six hundred and sixty feet off the nearest edge of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under section 104 of this title [23 U.S.C. § 104], until such time as such State shall provide for such effective control. Any amount which is withheld from apportionment to any State hereunder shall be reapportioned to the other States. Whenever he determines it to be in the public interest, the Secretary may suspend, for such periods as he deems necessary, the application of this subsection to a State.[7] What constitutes "effective control," as that term is used in 23 U.S.C. § 131(b), is explained as follows in 23 U.S.C. § 131(c): Effective control means that such signs, displays, or devices after January 1, 1968, if located within six hundred and sixty feet of the right-of-way and, on or after July 1, 1975, or after the expiration of the next regular session of the State legislature, whichever is later, if located beyond six hundred and sixty feet of the right-of-way, located outside of urban areas, visible from the main traveled way of the system, and erected with the purpose of their message being read from such main traveled way, shall, pursuant to this section, be limited to (1) directional and official signs and notices, which signs and notices shall include, but not be limited to, signs and notices pertaining to natural wonders, scenic and historical attractions, which are required or authorized by law, which shall conform to national standards hereby authorized to be promulgated by the Secretary hereunder, which standards shall contain provisions concerning lighting, size, number, and spacing of signs, and such other requirements as may be appropriate to implement this section, (2) signs, displays, and devices advertising the sale or lease of property upon which they are located, signs, displays, and devices including those which may be changed at reasonable intervals by electronic process or by remote control, advertising activities conducted on the property on which they are located, signs lawfully in existence on October 22, 1965, determined by the State, subject to the approval of the Secretary, to be landmark signs, including signs on farm structures or natural surfaces, of historic or artistic significance the preservation of which would be consistent with the purposes of this section, and (5) signs, displays, and devices advertising the distribution by nonprofit organizations of free coffee to individuals traveling on the Interstate System or the primary system. For the purposes of this subsection, the term "free coffee" shall include coffee for which a donation may be made, but is not required. An exception to the restrictions imposed on outdoor advertising by 23 U.S.C. § 131(c) is found in 23 U.S.C. § 131(d), which allows the placement of signs in commercial and industrial areas "consistent with customary use," as "determined by agreement between the several States and the Secretary [of the federal Department of Transportation]." 23 U.S.C. § 131(d) provides as follows: In order to promote the reasonable, orderly and effective display of outdoor advertising while remaining consistent with the purposes of this section, signs, displays, and devices whose size, lighting and spacing, consistent with customary use is to be determined by agreement between the several States and the Secretary [of the federal Department of Transportation], may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and primary systems which are zoned industrial or commercial under authority of State law, or in unzoned commercial or industrial areas as may be determined by agreement between the several States and the Secretary. The States shall have full authority under their own zoning laws to zone areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act. Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority. Nothing in this subsection shall apply to signs, displays, and devices referred to in clauses (2) and (3) of subsection (c) of this section. 23 U.S.C. § 131(k) provides that, "[s]ubject to compliance with subsection (g) of this section for the payment of just compensation, nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section." Congress has vested the Federal Highway Administration (FHWA), within the federal Department of Transportation, with the authority to promulgate regulations and otherwise carry out the provisions of 23 U.S.C. § 131. Among the regulations that the FHWA has promulgated pursuant to this authority are 23 C.F.R. § 750.705 and 23 C.F.R. § 750.706. 23 C.F.R. § 750.705 describes what a state must do "[i]n order to provide effective control of outdoor advertising." It provides, in pertinent part, as follows: In order to provide effective control of outdoor advertising, the State must: * * * (b) Assure that signs erected under § 750.704(a)(4)[8] and (5)[9] comply, at a minimum, with size, lighting, and spacing criteria contained in the agreement between the Secretary and the State; * * * (h) Develop laws, regulations, and procedures to accomplish the requirements of this subpart; * * * (j) Submit regulations and enforcement procedures to FHWA for approval. 23 C.F.R. § 750.706 concerns "[s]ign control in zoned and unzoned commercial and industrial areas." It provides as follows: The following requirements apply to signs located in zoned and unzoned commercial and industrial areas within 660 feet of the nearest edge of the right-of-way adjacent to the Interstate and Federal-aid primary highways. The State by law or regulation shall, in conformity with its agreement with the Secretary [of the federal Department of Transportation], set criteria for size, lighting, and spacing of outdoor advertising signs located in commercial or industrial zoned or unzoned areas, as defined in the agreement, adjacent to Interstate and Federal-aid primary highways. If the agreement between the Secretary and the State includes a grandfather clause, the criteria for size, lighting, and spacing will govern only those signs erected subsequent to the date specified in the agreement. The States may adopt more restrictive criteria than are presently contained in agreements with the Secretary.[10] Agreement criteria which permit multiple sign structures to be considered as one sign for spacing purposes must limit multiple sign structures to signs which are physically contiguous, or connected by the same structure or cross-bracing, or located not more than 15 feet apart at their nearest point in the case of back-to-back or "V" type signs. Where the agreement and State law permits control by local zoning authorities, these controls may govern in lieu of the size, lighting, and spacing controls set forth in the agreement, subject to the following: The local zoning authority's controls must include the regulation of size, of lighting and of spacing of outdoor advertising signs, in all commercial and industrial zones. The regulations established by local zoning authority may be either more restrictive or less restrictive than the criteria contained in the agreement, unless State law or regulations require equivalent or more restrictive local controls. If the zoning authority has been delegated, extraterritorial, jurisdiction under State law, and exercises control of outdoor advertising in commercial and industrial zones within this extraterritorial jurisdiction, control by the zoning authority may be accepted in lieu of agreement controls in such areas. The State shall notify the FHWA in writing of those zoning jurisdictions wherein local control applies. It will not be necessary to furnish a copy of the zoning ordinance. The State shall periodically assure itself that the size, lighting, and spacing control provisions of zoning ordinances accepted under this section are actually being enforced by the local authorities. Nothing contained herein shall relieve the State of the responsibility of limiting signs within controlled areas to commercial and industrial zones. The "agreement between the state and the United States Department of Transportation" (1972 Agreement) referenced in Section 479.156, Florida Statutes (as well as in Section 479.111(2), Florida Statutes) was entered into on January 27, 1972, pursuant to 23 U.S.C. § 131(d), by the FHWA Administrator (acting on behalf of the federal Department of Transportation) and the Governor of the State of Florida (acting on behalf of the State). The 1972 Agreement contains the following "WHEREAS" clauses: WHEREAS, Congress has declared that outdoor advertising in areas adjacent to the Interstate and Federal-aid Primary Systems should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty; and WHEREAS, Section 131(d) of Title 23, United States Code, authorizes the Secretary of Transportation to enter into agreements with the several States to determine the size, lighting, and spacing or signs, displays, and devices, consistent with customary use, which may be erected and maintained within six hundred sixty (660) feet of the nearest edge of the right-of-way within areas adjacent to the Interstate and Federal-aid Primary Systems which are zoned industrial or commercial under authority of State law or in unzoned commercial or industrial areas, also to be determined by agreement; and WHEREAS, the purpose of said agreement is to promote the reasonable, orderly, and effective display of outdoor advertising while remaining consistent with the national policy to protect the public investment in the Interstate and Federal-aid Primary Highways, to promote the safety and recreational value of public travel and to preserve natural beauty; and WHEREAS, Section 131(b) of Title 23, United States Code, provides that Federal-aid highway funds apportioned on or after January 1, 1968, to any State which the Secretary determines has not made provision for effective control of the erection and maintenance along the Interstate System and Primary System of outdoor advertising signs, displays, and devices which are within six hundred and sixty (660) feet of the nearest edge of the right-of-way and visible from the main traveled way of the system, shall be reduced by amounts equal to 10 per centum of the amounts which would otherwise be apportioned to such State under Section 104 of Title 23, United States Code, until such time as such State shall provide for such effective control; and WHEREAS, the State of Florida desires to implement and carry out the provisions of Section 131 of Title 23, United States Code, and the national policy in order, among other things, to remain eligible to receive the full amount of all Federal-aid highway funds to be apportioned to it on or after January 1, 1968, under Section 104 of Title 23, United States Code; Section I. of the 1972 Agreement contains definitions of the following terms used in the agreement: "Act"; "Unzoned commercial or industrial area"; "Commercial or industrial area"; "National System of Interstate and Defense Highways and Interstate System"; "Federal-aid Primary Highway"; "Main- traveled way"; "Sign"11; "Erect"; "Maintain"; "Safety rest area"; and "Visible." The term "customary use" (found in the agreement's second "WHEREAS" clause and in Section III) is not defined anywhere in the agreement. Section II. of the 1972 Agreement is entitled, "Scope of Agreement," and it reads as follows: This agreement shall apply to the following areas: All zoned and unzoned commercial and industrial areas within six hundred sixty (660) feet of the nearest edge of the right- of-way of all portions of the Interstate and Federal-aid Primary Systems within the State of Florida in which outdoor advertising signs may be visible from the main-traveled way of either or both of said systems. Section III. of the 1972 Agreement is entitled, "State Control," and it reads as follows: The State hereby agrees that, in all areas within the scope of this agreement, the State shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria: In zoned commercial and industrial areas, the State may notify the Administrator that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. In such areas, the size, lighting, and spacing requirements set forth below shall not apply. In all other zoned and unzoned commercial and industrial areas, the criteria set forth below shall apply: SIZE OF SIGNS The maximum area for any one sign shall be twelve hundred (1,200) square feet with a maximum height of thirty (30) feet and maximum length of sixty (60) feet, inclusive of any border and trim but excluding the base or apron, supports, and other structural members. The area shall be measured by the smallest square, rectangle, triangle, circle, or combination thereof which will encompass the entire sign. The maximum size limitations shall apply to each side of a sign structure; and signs may be placed back-to-back, side-by-side, or in V-type construction with not more than two displays to each facing, and such sign structure shall be considered as one sign. SPACING OF SIGNS Interstate and Federal-aid Primary Highways. Signs may not be located in such a manner as to obscure, or otherwise physically interfere with the effectiveness of an official traffic sign, signal, or device, obstruct or physically interfere with the deriver's view of approaching, merging, or intersecting traffic. Interstate Highway. No two structures shall be spaced less than one thousand (1,000) feet apart on the same side of the highway facing the same direction. Outside incorporated towns and cities, no structure may be located adjacent to or within five hundred (500) feet of an interchange, intersection at grade, or safety rest area. Said five hundred (500) feet to be measured along the Interstate from the beginning or ending of pavement widening at the exit from or entrance to the main traveled [way.] Federal-aid Primary Highways. No two structures shall be spaced less than five hundred (500) feet apart on the same side of the highway facing the same direction. Explanatory Notes. Official and "on premise" signs, as defined in Section 131(c) of Title 23, United States Code, and structures that are not lawfully maintained shall not be counted nor shall measurements be made from them for purposes of determining compliance with spacing requirements. The minimum distance between structures shall be measured along the nearest edge of the pavement between points directly opposite the signs along each side of the highway and shall apply only to structures located on the same side of the highway. LIGHTING Signs may be illuminated subject to the following restrictions: Signs which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights are prohibited, except those giving public service information such as time, date, temperature, weather, or similar information. Signs which are not effectively shielded as to prevent beams or rays of light from being directed at any portion of the traveled ways of the Interstate or Federal- aid Primary Highway and which are of such intensity or brilliance as to cause glare or to imp[air] the vision of the driver of any motor vehicle, or which otherwise interfere with any driver's operation of a motor vehicle are prohibited. No sign shall be so illuminated that it interferes with the effectiveness of, or obscures an official traffic sign, device, or signal. All such lighting shall be subject to any other provisions relating to lighting of signs presently applicable to all highways under the jurisdiction of the State. At any time that a bona fide county or local zoning authority adopts regulations which include the size, lighting, and spacing of outdoor adverting, the State may so certify to the Administrator and control of outdoor advertising in the commercial or industrial zones within the geographical jurisdiction of said authority will transfer to subsection A of this section. It is hereby agreed that the State shall not be required to remove any tourist- oriented directional sign until the Highway Beautification Commission has submitted its report to the Congress of the United States. It is further agreed that the removal of such signs will be of the lowest priority in the State's removal schedule. The size, lighting, and spacing criteria set forth in Subsection III.B. are the product of what the parties to the agreement deemed to be the statewide "customary use" with respect to outdoor advertising in the affected areas of the State, as of the date of the agreement, January 27, 1972. Section IV. of the 1972 Agreement is entitled, "Interpretations," and it reads as follows: The provisions contained herein shall constitute the standards for effective control of signs, displays, and devices within the scope of this agreement. In the event the provisions of the Highway Beautification Act of 1965 are amended by subsequent action of Congress or the State legislation is amended, the parties reserve the right to renegotiate this agreement or to modify it to conform to any amendment. There is no evidence that the 1972 Agreement has been modified, pursuant to the provisions of Section IV., at any time subsequent to its execution in 1972.12 Section V. of the 1972 Agreement provides that the "agreement shall have an effective date of the 27th day of January, 1972." The Legislature has delegated to the Department the responsibility of administering and enforcing the 1972 Agreement, as well as Chapter 479, Florida Statutes. These and other duties of the Department are described in Section 479.02, Florida Statutes, which provides, in pertinent part, as follows: It shall be the duty of the department to: Administer and enforce the provisions of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the effective date of this act.[13] Regulate size, height, lighting, and spacing of signs permitted in zoned and unzoned commercial areas and zoned and unzoned industrial areas on the interstate highway system and the federal-aid primary highway system. Determine unzoned commercial areas and unzoned industrial areas. * * * (7) Adopt such rules as it deems necessary or proper for the administration of this chapter, including rules which identify activities that may not be recognized as industrial or commercial activities for purposes of determination of an area as an unzoned commercial or industrial area. * * * Other Florida statutory provisions that delegate authority to the Department include Sections 334.044(2) and 339.05, Florida Statutes, which provide as follows: Section 334.044(2), Florida Statutes The department shall have the following general powers and duties: To adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of law conferring duties upon it. Section 339.05, Florida Statutes The state hereby assents to the provisions of the Act of Congress approved July 11, 1916, known as the Federal Aid Law, which Act of Congress is entitled "An act to provide that the United States shall aid the states in the construction of rural post roads and for other purposes," and assents to all subsequent amendments to such Act of Congress and any other act heretofore passed or that may be hereafter passed providing for federal aid to the states for the construction of highways and other related projects. The department is authorized to make application for the advancement of federal funds and to make all contracts and do all things necessary to cooperate with the United States Government in the construction of roads under the provisions of such Acts of Congress and all amendments thereto. In 1995, the City of Tampa requested that it be allowed, pursuant to Subsection III.A. of the 1972 Agreement, to regulate outdoor advertising on property controlled by the Tampa Sports Authority in lieu of the more restrictive controls established in the agreement. By letter dated November 13, 1995, the Department (exercising its authority to administer and enforce the 1972 Agreement on behalf of the State of Florida) notified the FHWA that it had certified that the City of Tampa had "established effective control of outdoor advertising" within the area in question. In its letter, the Department advised, among other things, that a showing had been made that the "uses recognized" by the City of Tampa "were in place . . . prior to 1972." The FHWA responded to this notification by sending the Department a letter dated November 17, 1995, in which it stated the following: Your letter dated November 13, 1995 requesting that the City of Tampa be authorized to control outdoor advertising signs in the Tampa Sports Authority Complex along Dale Mabry Highway has been reviewed. The [FHWA] appreciates the opportunity to participate in this initial effort to delegate the control of outdoor advertising signs to local officials as authorized by the applicable Federal Regulations. The proposal and plan to control the erection of outdoor advertising signs in the Stadium Complex are considered to be in compliance with Federal requirements and the proposal is approved as requested. If similar requests are made by other local jurisdictions, it will not be necessary for this office to review and approve individual requests if they follow the same basic format as this proposal No other jurisdiction in Florida has been certified by the Department as exercising "effective control" over outdoor advertising pursuant to Subsection III.A. of the 1972 Agreement. The instant controversy involves the validity of a proposed Department rule (Florida Administrative Code Rule 14- 10.025) regulating "wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway." The original version of the proposed rule was published in the February 23, 2008, edition of the Florida Administrative Weekly. Petitions challenging the original version of the proposed rule were filed with DOAH by Van Wagner and Fuel Miami on April 11, 2008. A hearing on the petitions (which were consolidated) was scheduled for June 16, 2008. On May 21, 2008, the Department filed an Agreed Motion for Abeyance, in which it stated the following: This consolidated proceeding involves a challenge to Proposed Rule 14-10.025, Florida Administrative Code. A hearing is currently scheduled for June 16, 2008. The Department relied on the 2007 enactment of Section 479.156, Florida Statutes, as authority for the proposed rule. On May 2, 2008, the Florida legislature passed Senate Bill 682, which included in Section 42 the following underlined and strike through changes to Section 479.156, Florida Statutes: "479.156 Wall murals.--Notwithstanding any other provision of this chapter, a municipality or county may permit and regulate wall murals within areas designated by such government. If a municipality or county permits wall murals, a wall mural that displays a commercial message and is within 660 feet of the nearest edge of the right-of-way within an area adjacent to the interstate highway system or the federal-aid primary highway system shall be located in an area that is zoned for industrial or commercial use and the municipality or county shall establish and enforce regulations for such areas that, at a minimum, set forth criteria governing the size, lighting, and spacing of wall murals consistent with the intent of the Highway Beautification Act of 1965 and with customary use. Whenever a municipality or county exercises such control and makes a determination of customary use, pursuant to 23 U.S.C. s. 131(d), such determination shall be accepted in lieu of controls in the agreement between the state and the United States Department of Transportation, and the Department of Transportation shall notify the Federal Highway Administration pursuant to the agreement, 23 U.S.C. s. 131(d), and 23 C.F.R. s. 750.706(c). A wall mural that is subject to municipal or county regulation and the Highway Beautification Act of 1965 must be approved by the Department of Transportation and the Federal Highway Administration where required by federal law and federal regulation pursuant to and may not violate the agreement between the state and the United States Department of Transportation and or violate federal regulations enforced by the Department of Transportation under s. 479.02(1). The existence of a wall mural as defined in s. 479.01(27) shall not be considered in determining whether a sign as defined in s. 479.01(17), either existing or new, is in compliance with s. 479.07(9)(a)." The bill is awaiting presentation to the Governor. Based on changes to the implementing legislation and comments received during the workshop process, the Department plans to publish a Notice of Change to Rule 14- 10.025, Fla. Admin. Code within the next forty-five days. The parties have agreed that a hearing on the current version of the proposed rule would be unproductive. Wherefore, the Department requests with concurrence from both Petitioners that the June 16, 2008, hearing be cancelled and the above styled matter be placed in abeyance with the parties to report the status of this matter by August 1, 2008. The Department's motion was granted by the undersigned by order issued May 23, 2008. The bill amending Section 479.156, Florida Statutes, that the Department had cited in its May 21, 2008, Agreed Motion for Abeyance was vetoed by the Governor on June 17, 2008. On July 18, 2008, the Department published a notice in the Florida Administrative Weekly of changes it had made to proposed Florida Administrative Code Rule 14-10.025. As amended, the proposed rule reads as follows: 14-10.025 Wall Murals. Department approval of wall murals displaying commercial messages within 660 feet of the right of way of an interstate or federal aid primary highway may be obtained either by compliance with local sign control in municipalities or counties exercising such control pursuant to subsection (2) of this rule or by direct approval as set forth in subsection (3) of this rule. In order to exercise local sign control over wall murals pursuant to 23 U.S.C. 131(d), 23 C.F.R. 750.706(c) and the Agreement between the State of Florida and the United States Department of Transportation (Federal/State Agreement), a municipality or county must demonstrate to the Department that it has established and will enforce regulations with criteria governing the size, lighting, and spacing of signs consistent with the intent of the Highway Beautification Act of 1965 and with customary use. Customary use means the predominant, usual practice with regard to size, lighting, and spacing of signs existing in the municipality or county as of the date of the Federal/State Agreement, being January 27, 1972. Upon Department acceptance of a municipality or county's exercise of local control, the Department will notify the Federal Highway Administration pursuant to 23 CFR 750.706(c). The Department will monitor the municipality or county for continuing effective local control. Exercise of local control will be disallowed if the municipality or county fails to enforce its regulations or if the Federal Highway Administration notifies the Department of an intent to impose the penalty provided for in 23 USC 131(b) because the exercise of local control by the municipality or county has resulted in a of [sic] loss of effective control of outdoor advertising. Wall murals maintained in violation of local control requirements are illegal signs subject to local enforcement and removal in accordance with Section 479.105, F.S. In municipalities or counties which permit and regulate wall murals but which do not exercise local sign control as a [sic] described above, application for approval of a wall mural is made by completing and submitting the form Application for Wall Mural Approval, Form 575-070-31, Rev. 09/07, incorporated herein by reference, to the address listed in subsection 14-10.003(2), F.A.C. The application form may be obtained from the State Outdoor Advertising License and Permit Office. A separate application is required for each wall mural. Priority of applications will be based upon the order of receipt of completed applications. An application will be considered complete when all items on the application form have been filled in, and all required attachments received. Incomplete applications will be returned to the applicant without Departmental action. Applications containing incorrect information will be returned to the applicant as denied. Once an application form has been received by the Department, any change or addition to the application form as submitted must be initialed by the applicant on the original application document. Each application must include the following attachments: A statement from the municipality or county government within whose jurisdiction the mural is to be located that the property on which the mural is to be located is zoned for commercial or industrial use, A statement from the municipality or county government approving the placement of the wall mural as described in the Application, A copy of the municipality or county ordinance enacted in conformance with Section 479.156, F.S., allowing for the placement of wall murals, A photograph of the building on which the mural will be displayed, and Payment for the initial fee in the amount set forth in Rule 14-10.0043, F.A.C., for outdoor advertising permit fees. In order to be approved by the Department, all the following requirements must be met: The property on which the wall mural is to be located must be zoned for commercial or industrial uses. The height of the mural may not exceed 30 feet. The width of the mural may not exceed 60 feet. The total area of the mural may not exceed 1,200 square feet. Wall murals must meet minimum spacing from any permitted outdoor advertising sign or previously approved wall mural. Minimum spacing is 500 feet on the federal aid primary highway system and 1,000 feet on the Interstate highway system. Measurements are taken from the midpoint of a mural placed parallel to the controlled roadway and from the point of the mural closest to the roadway for right or left read displays. Wall murals may not be located within 500 feet of an interstate interchange outside an incorporated area.[14] An annual fee in the amount established in Rule 14-10.0043, F.A.C., for outdoor advertising permit fees must be paid. The Department shall deny any application for a wall mural and will revoke any previously issued permit if the Department receives notification from the Federal Highway Administration that the wall mural is not approved under federal laws or regulations. The Department will approve or deny complete applications within 30 days of receipt by the Department. Specific Authority 334.044(2), 479.02(7) FS. Law Implemented 339.05, 479.02, 479.07, 479.15, 479.156 FS. In defining "customary use" in the amended version of proposed Florida Administrative Code Rule 14-10.025 (Amended Proposed Rule), the Department borrowed from what, according to information it had received from the FHWA, was the definition employed by the FHWA. Prior to publishing notice of the Amended Proposed Rule, the Department had obtained from the FHWA, in response to an inquiry it had made, a copy of a February 14, 2007, e-mail from the FHWA's Janis Gramatins and a copy of a March 17, 2008, memorandum authored by the FHWA's Gerald Solomon, Esquire. Both of these documents addressed the meaning of the term "customary use," as it had been interpreted by the FHWA.15 Ms. Gramatins' e-mail read, in pertinent part, as follows: It is also noted that during our phone conversation, it appears that some confusion may have arisen over interpretation of the Florida agreement and the corresponding sections of the HBA, namely Section III of the agreement and Federal HBA requirements, Title 23, United States Code, Section 131(d) and Title 23, Code of Federal Regulations, Subsection 750.706. A casual reading may indicate that any time a bona fide State, county or local jurisdiction makes a determination of customary use, such determination will be accepted in lieu of controls specified in the agreement in the zoned commercial and industrial areas within the geographic area of the jurisdiction. That is not the case. The words "customary use" must be interpreted within the context of the time when the agreement was written.[16] In executing its agreement with the United States in 1972, the State of Florida determined that customary use limited the size of signs in Florida to 1,200 square feet and made no exceptions for larger signs within its political subdivisions or other jurisdictions of the State. Any sign in existence at the time the agreement was executed that exceeded the limitation of 1,200 square feet would have been classified as nonconforming and subject to purchase and removal. Any sign erected since execution of the agreement that exceeded the 1,200 square foot limit would be illegal and subject to removal without compensation. Even if the city (Miami) secures Florida certification, the signs would remain illegal unless the city could show a history of signs in 1968 [sic], when the agreement was executed,[17] that were differently sized, spaced or lighted from the State standards within its zoning authority. We understand that signs like these have no customary use in Miami or the State of Florida. They cannot now be deemed "customary."[18] In his memorandum, Mr. Solomon discussed FHWA's "long held position" on what constitutes "customary use." The memorandum read as follows: The purpose of this memorandum is to respond to your correspondence of March 4, 2008, regarding the Federal Highway Administration (FHWA) position on building/wall murals as it relates to customary use. Murals which contain commercial advertisement, which are along federally controlled routes, must comply with State/Federal agreement criteria for size, spacing, and/or zoning. Your questions relate to the interpretation of customary use. In the Highway Beautification Act (HBA), codified at 23 U.S.C. § 131, the term "customary use" appears twice in subsection (d). Your questions are concerned with the FHWA interpretation of the term as it appears the second time in subsection (d): "Whenever a bona fide State, county, or local zoning authority has made a determination of customary use, such determination will be accepted in lieu of controls by agreement in the zoned commercial and industrial areas within the geographical jurisdiction of such authority." The FHWA reiterates its long held position on this matter; the term "customary use" in the above sentence refers to the predominant, usual outdoor advertising signs existing in a zoning authority's jurisdiction as of the date the State/Federal agreement was executed.[19] The term is limited to the size, lighting and spacing standards for outdoor advertising signs and displays within the zoning authority. The FHWA has maintained this interpretation since at least 1990 (as old documents have attested). The issue of customary use within a local zoning authority has not generated much controversy over the years. There were very few local zoning authorities in the United States which made a determination of customary use as specified in § 131(d), and most were established about the time of the execution of the State/Federal agreements. In the past few years the issue has arisen in Dallas, Texas, and Columbus, Ohio, because of the desire to erect exceedingly large outdoor advertising displays. In both of these instances, the FHWA has maintained that the cities would have to demonstrate that such large signs were in customary use at the time the State/Federal agreements were signed. Dallas had been a certified city (i.e., a recognized local zoning authority that controls signs in zoned areas in the city) since the early 1970's, so the date of the State/Federal agreement was not important. The City of Columbus is not a certified city so the date of their State/Federal agreement was important. Again, the FHWA said that the city of Columbus had to show that such large signs were a customary use within its jurisdction at the time the agreement between the State of Ohio and the FHWA was executed. The FHWA's position in the Dallas, Texas matter referenced in Mr. Solomon's memorandum was explained in a letter, dated September 2, 2003, from FHWA Administrator Mary Peters to Texas Congressman Pete Sessions, which read, in pertinent part, as follows: . . . . TxDOT rules do allow cities to be less strict than the State on size, lighting, and spacing criteria. However, the State-Federal agreement requires these municipal criteria to be consistent with the purpose of the HBA and with customary use prior to the date of the Federal-State agreement. During the meeting with Mr. Anderson, the subject of "customary use" was discussed. "Customary use" would apply to Mr. Rogers' sign if such signs had been customarily in use in Dallas, as the certifying city, prior to the HBA State-Federal agreement. The TxDOT letter stated that signs of the size in question had not been a common practice and are prohibited. If Mr. Rogers has information to the contrary, I suggest he present it to TxDOT for consideration. The FHWA's position in the Columbus, Ohio matter referenced in Mr. Solomon's memorandum was explained in a letter, dated May 19, 2005, from FHWA Administrator Peters to Ohio Congresswoman Deborah Pryce, which read, in pertinent part, as follows: As described in the material you enclosed, the Ohio Department of Transportation (ODOT) has ordered the removal of three signs belonging to Orange Barrel Media that were erected as part of the graphics plan. The order was issued because the signs exceed the maximum size allowed by Ohio law and the ODOT's agreement of June 26, 1968, with the Federal Highway Administration. It appears that some confusion has arisen over the interpretation of the agreement and the corresponding sections of the HBA, namely Section III of the agreement and Federal HBA requirements at Title 23, United States Code 131(d) and Title 23, Code of Federal Regulations, Subsection 750.706. A casual reading may indicate that any time a bona fide State, county or local jurisdiction makes a determination of customary use, such determination will be accepted in lieu of controls specified in the agreement in the zoned commercial and industrial areas within the geographic area of the jurisdiction. That is not the case. The words "customary use" must be interpreted within the context of the time when the agreement was written. Under the FHWA's regulations, the city of Columbus is seeking ODOT certification to regulate outdoor advertising along highways subject to the HBA. We understand that the proposed ordinance submitted by the city is not sufficient in scope to substitute for State regulation. If the city resubmits a request that satisfies ODOT certification criteria, the city will be expected to adhere, at a minimum, to the size, spacing, and lighting requirements in the agreement; the city would be able to adopt more stringent, but not less stringent requirements. In executing its agreement with the United States in 1968, the State of Ohio determined that customary use limited the size of signs in Ohio to 1,200 square feet and made no exceptions for larger signs within its political subdivisions or other jurisdictions of the State. Any sign in existence at the time the agreement was executed that exceeded the limitation of 1,200 square feet would have been classified as nonconforming and subject to purchase and removal. Any sign erected since execution of the agreement that exceeded the 1,200 square foot limit would be illegal and subject to removal without compensation. The three signs in question violate the agreement because of their size and, in one case, spacing. Even if the city secures ODOT certification, the signs would remain illegal unless the city could show a history of signs in 1968, when the agreement was executed, that were differently sized, spaced or lighted from the State standards within its zoning authority. We understand that signs like these have no history of customary use in Columbus. They cannot now be deemed customary.[20]
The Issue This case concerns the issue of whether the Petitioner should be granted an exemption to construct approximately 2,100 linear feet of seawall along the western and southwestern shorn of Fisher Island, located in Biscayne Bay, Florida. In the alternative Petitioner seeks to obtain a permit for such construction nod accompanying fill in the event that it does not qualify for an exemption. At the final hearing Petitioner called as witnesses John f. Guttman, Jon Staiger, J. Van De Kreeke and Howard Teas. Tee Respondent called as witnesses Richard E. Walesky and Jeremy Allen Craft. The Petitioner offered and had admitted into evidence 93 exhibits. The Respondent offered and had admitted into evidence 7 exhibits. Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact At the final hearing the parties stipulated to certain facts and based upon that stipulation those facts are found as follows: Petitioner FISHER ISLAND, a Florida limited partnership, owns the entire western and southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. FISHER ISLAND owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Fund) sold the lands in question in 1920, and FISHER ISLAND has purchased those lands along with most of the island. The lands owned by FISHER ISLAND are set forth in the legal descriptions contained in Deed Nos. 16,336, 16,336c, and 18110 from the Board of Trustees of the Internal Improvement Trust Fund and in two deeds dated October 31, 1979, from Fisher Island Associates, Inc., and Cocolobo Corporation to Island Developers, Ltd. Acting through the Department of Natural Resources (DNR), the Board has admitted FISHER ISLAND'S ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore a seawall. On or about October 27, 1981, FISHER ISLAND applied to Department of Environmental Regulation (DER) for a dredge and fill permit to restore an existing seawall and thereby bulkhead about 2 100 linear feet of the southwestern shoreline of the island at a distance of IS feet or greater from the shoreline. FISHER ISLAND initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.812(2)(a) of the Florida Statutes and Rule 17-4.04(9)(h) of the Florida Administrative Code. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach, submitted their report of a visual inspection of the site made by Mr. Walesky in November, 1981. Mr. O'Donnell did not inspect the site. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. He took no measurements and no soil, water, or any other kind of samples. He did take panoramic photographs of the shoreline. Mr. Walesky observed in his report that 8 to 10 mangroves were scattered over several hundred feet of the area at issue, along with some Australian pines, and that a large dredging pipe was tied up to the trees along the same portion of the shore. He concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner FISHER ISLAND that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit. On January 4, 1983, Mr. Walesky returned to the site for an inspection of the site's biological characteristics and value and an assessment of the projected impacts of the proposed seawall restoration on the environment. Again, he took no measurements or samples. He did not note the presence of any grass beds, oyster beds, or clam beds. He did take certain photographs of the shoreline. Mr. Walesky noted that cost of the area was sandy and clean, with algae-covered boulders the main form of life present. On the basis of Mr. Walesky's two inspections, DER issued its Intent to Deny the permit requested by FISHER ISLAND, on April 15, 1983. The shoreline along which Petitioner wishes to place the proposed seawall runs primarily along the southwest side of Fisher Island. This area is adjacent to a channel called Norris Cut. The depth of the water along Norris Cut drops abruptly from as little as 2 feet to as deep as 18 feet. Over the past years there has been substantial erosion along this shoreline. However, there is a very gradual slope from the shoreline to a point off-shore where there is an abrupt and steep drop-off into the cut. The point where this drop- off occurs is in a straight line along this shoreline and is in direct line with the old seawall located along the Garwood Estate which is located in part along the same shoreline but east of the proposed seawall area. This area of the shoreline is constantly impacted by strong currents and wave action. Aerial photographs from as early as 1945 reveal that the straight line along which the abrupt drop- off occurs has remained straight and in the same position since 1945. This line and the resulting contours are very unusual along shores of is lands in this area and is consistent with the existence of an artificial structure such as a seawall holding the sand along the shore in place. Typically shorelines in this area which are exposed to this type of tidal, wave and current action have a more gradual slope and a more meandering slope or shoreline. Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall. There presently remains along the western tip, two rows of tieback pilings, totaling 80 in number. These tiebacks at one time were part of the seawall which was built along this shoreline. Seaward of one of these groups of tiebacks there remains a small area where the pilings and planks of the old seawall are still visible. A second group of tiebacks is located along the southwest shore and number 42. These two groups of pilings appear to be parallel to the line of drop-off and functioned as part of a seawall along this shore. In the early 1960's pilings along the drop-off line extended above water level and were visible along approximately 50 per cent of the area of the proposed seawall. These pilings were a navigational hazard and in 1981 were nipped off at the sand bottom in order to avoid boating accidents. These piles were part of the old seawall. Just east of the area of the proposed seawall there is a marina entrance which has been cut into the shoreline, dredged, and bulkheaded. At one point during the construction of the bulkhead that runs along the shore the contractor veered off course a small amount and hit the remaining portion of the old seawall in that area. The old seawall was stable enough that pilings could not be driven and so the pilings, planks and cables of the old seawall were removed. In order to dredge and clear the entrance to the marina it was also necessary to remove the old seawall located in the entrance area. The various experts called by Petitioner and Respondent gave different definitions of a seawall. John R. Guttman, an expert in civil and coastal engineering, marina planning and seawall construction, testified that the purpose of a seawall is to retain fill and that a "functioning seawall" did not have to be visible above water. Dr. Jacobus Van De Kreeke, an expert and Ph.D. in coastal and oceanographic engineering, testified that the function of a seawall is to retain lands, to prevent land from sliding into the ocean, and to protect, uplands from wave action. Dr. Van De Kreeke based his definition primarily upon the Shore Protection Manual of the Army Corps of Engineers and opined that the structure along the drop-off line in the area of the proposed seawall is still a functioning seawall. Mr. Walesky, who is an expert in marine ecology, testified that a seawall functions to separate the land from the sea. Jeremy Craft, an expert in water quality and marine ecology, argued with the definition of a seawall given by Mr. Walesky. Mr. Walesky and Mr. Craft are employees of the Respondent, DER, and Mr. Guttman and Dr. Van De Kreeke testified on behalf of Petitioner. The term "seawall" is not defined in the DER rules or in the Florida Statutes. Up to some point in time in the past there was a complete and functioning seawall along the shore involved in this application. The subsurface portion of that seawall remains to date and continues to perform the function of that portion of a seawall which lies below the surface and in the soil. The shoreline involved, at one time bad 8 to 10 white mangroves growing in and among the Australian pines which grew along the shore in the same area. The mangroves were in a line no more than one plant deep. Prior to Mr. Walesky's second inspection these mangroves were apparently pulled out by dredge pipes which had been anchored to them by someone other than Petitioner. It is likely that without the Australian pines these mangroves would have been washed away. Of the three types of mangroves the white mangrove lives farther up- shore and is less susceptible to growing or becoming established in the inter- tidal zone. Red mangroves live out in the water, grow farther into the inter- tidal zone and are considered to be of higher value than white mangroves in a mangrove eco-system. A mangrove eco-system is beneficial to the environment. A few singular mangroves do not constitute a mangrove eco-system. Mangroves become established by seedlings becoming trapped along shore and taking root. In this area of the Fisher Island shoreline, the shore is constantly washed by swift currents and tidal and wave action. There are no extended periods of no motion because of the rapid turnover and change in direction of tides in this area. Some of the swiftest currents in the area of Norris Cut and Fisher Island occur directly along and adjacent to this shoreline. The result is that suspended materials such as mangrove seedlings have no opportunity to accumulate along the shoreline. These same factors also result in a very sparse rack line in this area. It is highly unlikely that this shoreline would support a mangrove fringe. In the fall of 1983 when Dr. Howard Teas, an expert marine biology, water quality, and coastal and mangrove ecology, inspected the area involved he found no mangrove seeds along the rack line on Fisher Island when they were present elsewhere in the area. Dr. Teas as well as Dr. John Steiger, opined that this high energy shoreline is not conducive to the establishment of a mangrove fringe and it is highly unlikely that a mangrove fringe will become established along this shore. Mr. Walesky in his inspection prior to the final hearing observed sesuvium grass along the shoreline and saw one red mangrove seedling which had become rooted in the sesuvium grass. Mr. Walesky agreed that this shoreline is a high velocity area, but opined that a number of years from now mangroves may begin to grow along this shoreline. Some grass beds do appear in the inter-tidal area which would be filled under this application. These grass beds cover about 3.8 to 4 per cent of the total area involved. These beds are sparse with very low density. Haladule and halophila are the grasses found along this shore. The numerous photographs and aerial photographs presented in evidence revealed no human activities or construction along this shoreline which could have prevented the establishment or growth of these grass beds in this area over the last three or four years. Both haladule and halophila can become established in one year. Brownish algae also appears along this shoreline and forms a thin felt-like mat in the areas where it appears. The water in this area is very turbid and there are no oyster or clam beds. The number and density of organisms along this shoreline are both very low. The area along this shoreline is one of poor productivity. Samples taken by Petitioners expert in the vicinity of this shoreline had a density of organisms approximately 1710 the absolute density of typical areas of Biscayne Bay. The soil along the shoreline involved is primarily sandy silt. This type of soil has some cohesiveness but not very much. Neither party in the Instant case did testing to determine the specific cohesive properties of the soil along Fisher Island and Norris Cut. The proposed seawall will begin at a point approximately 70 to 100 feet west of the marina entrance. Approximately 500 to 530 feet of the westernmost portion of the proposed seawall will be located beyond or outside of the boundary of the Biscayne Bay Aquatic Preserve. The seawall will be constructed of a slab and pile concrete system. This construction approach is an acceptable method of constructing a seawall in this area and is identical to the structure that was permitted by DER in 1979 for another area of shoreline of Fisher Island. There is a cap along the top of the proposed seawall which will prevent stormwater runoff from the island into the adjacent waters of Norris Cut.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order granting the exemption of Petitioner's seawall as requested. DONE and ENTERED this 9th day July, 1984. MARVIN E. CHAVIS 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 9th day of July, 1984. COPIES FURNISHED: Timothy A. Smith, Esquire 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been certified by Petitioner as a building code administrator in the State of Florida. On April 5, 1993, Respondent began his employment with Metropolitan Dade County, Florida, as the permit control division chief in the County's Department of Building & Zoning, now known as the Department of Planning, Development and Regulation. Carlos Bonzon was the head of the County's Department of Building & Zoning and also served as the County's Building Official. The Port of Miami is another department within Metropolitan Dade County. At all times material hereto, Carmen Lunetta was the head of that department. The County desired to expand Terminals 8 and 9 at the Port of Miami to accommodate a Carnival Cruise Lines mega-cruise ship, anticipated to arrive in March 1996. The County was concerned that if it could not offer the taller terminal required for such a large ship, the ship would utilize Port Everglades instead of the Port of Miami. For purposes of construction, Terminals 8 and 9 were "threshold" buildings. A threshold building is one which is of such magnitude or complexity that the construction requires continuous inspections. Those continuous inspections are performed by the on-site "threshold inspector," the engineer of record, who keeps a log of the on-going inspections. The expertise required of a threshold inspector is beyond that of most County field inspectors. When a threshold inspector is involved, the County's inspectors check to make sure the log is being kept up-to-date and on-site. On January 27, 1995, a pre-submittal meeting was attended by representatives of Dade County, of the architect, and of the engineer. Respondent was one of the attendees. The meeting was chaired by Jose Cueto, the "special assistant" to Bonzon. Saul Suarez, the project architect, explained the project, and Cueto advised the attendees that the construction needed to begin even without the County's approval of building plans and the issuance of a permit and that County inspectors would perform "courtesy inspections" to make sure the work was being performed according to the architectural plans. Further, the inspectors were not to stop the construction work although there were no approved plans and no permit. While the South Florida Building Code does not provide for courtesy inspections, it was understood that the courtesy inspections referred to by Cueto were the same as "field visits." In a field visit a County inspector will travel to the job site, observe the construction, and meet with the contractor, engineer, or architect to discuss any concerns they may have. A field visit is not an official inspection required by the South Florida Building Code. Construction work began on Phase I, the foundation for Terminals 8 and 9. By letter dated February 10, 1995, Port Director Lunetta wrote to Building & Zoning Department Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for the project, allowing the construction to proceed during the review of construction documents "for the work being performed at this time." By letter dated June 29, 1995, Port Director Lunetta again wrote to Director Bonzon, confirming Lunetta's understanding that Bonzon's Department had issued a "conditional permit" for Phase II of the project, allowing construction to proceed during the review of construction documents "for the work being performed at this time." There is no such permit as a conditional permit under the South Florida Building Code. In July 1995 Cueto conducted a meeting regarding Phase II, the superstructure, which was attended by Respondent and other Building & Zoning Department representatives, the architect, and Port of Miami representatives. Cueto acquainted the attendees with Phase II of the construction and advised that the work would exceed the drawings and approved plans. Cueto outlined the procedures which were set up by Director Bonzon and specified that, in addition to the threshold engineer's inspection, County inspections were to be performed only by the Chief Inspector in each of the trades since the chief inspectors would have the most experience. Cueto also advised that he personally would be in charge of coordinating inspections and plans review as a result of the procedures established by Director Bonzon for the project. As the head of the Department of Building & Zoning and as the County's Building Official, Bonzon had the authority to re-assign duties for the Department's employees. Although Cueto was not certified to review plans and had had no authority over the County's plans review and inspection processes, Respondent and the others attending the January 1995 meeting and the July 1995 meeting understood that Bonzon had delegated to Cueto the responsibilities for ordering inspections and overseeing the processing of the building plans for the project. On July 7, 1995, a building permit was issued for the project. The permit was restricted to "foundation only." Throughout 1995 County inspectors visited the job site. They viewed the construction and verified that the threshold inspection log was on-site and up-to-date. The inspections were not recorded as official inspections because the County's computer would not accept inspection entries before a permit had been issued. The inspectors kept notes regarding their courtesy inspections or field visits. All mandatory inspections under the South Florida Building Code were conducted, both before and after the issuance in July 1995 of the building permit with the restriction limiting construction to foundation only. At the end of 1995 the County re-organized some of its departments, including the Building & Zoning Department. Director Bonzon and his special assistant Jose Cueto were transferred to the transportation department, and Bonzon was no longer the County's Building Official. On January 10, 1996, Respondent was certified by the Secretary of the Dade County Board of Rules and Appeals, subject to approval by the Certification Subcommittee at the January 30, 1996, meeting, to become the County's Building Official. As of that date, Respondent considered himself to have assumed the duties of that office. He did not also become the head of the Department; he remained in his position as Permit Control Division Chief. In either the first or second week of January, Respondent went to the offices of Bonzon and Cueto, who were in the process of moving to their new offices, to say good-by. In Cueto's office, Respondent saw a set of building plans lying on Cueto's window ledge. He asked if those were the plans for Terminals 8 and 9, and Cueto answered in the affirmative. Respondent took the plans and personally delivered them to the Chief Construction Plans Examiner, Frank Quintana. He directed Quintana to do whatever was necessary to expedite the County's review of those plans. Quintana divided the required two sets of plans so two reviewers could be processing them at the same time and personally took them from reviewer to reviewer in order to expedite them as quickly as possible. The expedited review process Respondent directed to occur resulted in the foundation- only restriction being removed from the permit on February 6, 1996. On that date, the construction at Terminals 8 and 9 was 85 to 95 percent complete. Prior to the removal of the foundation-only restriction from the permit on February 6, subcontracting permits for mechanical, electrical, and plumbing work had not been, and could not have been, issued. Respondent immediately reported his discovery of the plans in Cueto's office and his decision to expedite their review to his superiors, Guillermo Olmedillo and Ray Villar. Respondent did not order the construction stopped. He knew that the threshold inspector had been performing on-going inspections, the architect had been regularly on-site, and that County inspectors had been visiting the job site on a regular basis. He also knew that all mandatory inspections had been conducted on schedule. He had no reason to believe that any of the construction was unsafe or that there was any danger to the public as a result of the construction having proceeded without proper permitting. He believed that the work itself was in compliance with the South Florida Building Code. On January 18, 1996, the project architect forwarded to Respondent a request that certain mandatory inspections be made. On January 20, Respondent ordered those inspections to be made. Those were the only inspections which Respondent ordered to be performed. In early March shop drawings were reviewed for a pre- fabricated stairwell. Although the stairs were safe for use by the construction workers, the County reviewer questioned the adequacy of the stairs for use by the public using the terminals. Based upon his concerns, repairs were made to the stairs to strengthen them, and they were subsequently approved as complying with all requirements to insure the public's safety. On March 8, 1996, a temporary certificate of occupancy was issued for Terminals 8 and 9. There was never any danger to the public as a result of the construction of Terminals 8 and 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 18th day of December, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1998. COPIES FURNISHED: Diane Snell Perera, Esquire Seymour Stern, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N607 Miami, Florida 33128 Gary B. Goldman, Esquire Law Offices of Gary B. Goldman 20700 West Dixie Highway, Suite 100 North Miami Beach, Florida 33180 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ila Jones, Executive Director Building Code Administrators and Inspectors Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Pinellas Count Water and Navigation Control Authority Regulations (PCWNCAR) as more specifically alleged in the Administrative Complaint dated September 12, 1990.
Findings Of Fact John C. Lombardi, Respondent, is a certified marine specialty contractor and was so licensed at all times here relevant. He holds license C- 4097. Respondent at all times relevant hereto was the qualifying contractor for Myron Gibson Marine Construction Corporation. He also is the owner of Myron Gibson Marine Construction Corporation. Respondent entered into an oral contract with Larry Mickelson to install two tie poles off the dock at 809 Bay Point Drive and into a written contract with the property owner of this property to install two tie poles. Under the terms of the written contract, Respondent contracted to install these tie poles 25 feet off the dock with a minimum penetration of 10 feet. Due to an error on the part of the contractor, the initial tie poles were installed too close to the dock and had to be relocated. Respondent contracted with Mickelson to jet the poles to the required penetration. However, at the location 25 feet off the dock, the construction crew encountered a hard clay and shell mixture some four feet below the water bottom sand and silt and could get less than 8 feet penetration. When Mickelson attempted to tie up his boat to these tie poles, he noted they moved and called Gibbon Marine to correct the situation. In resetting the piles, Gibson Marine cut one of the piles in a point to facilitate driving the pile to a greater penetration. A drop hammer was used to drive the piles further into the clay and shell mixture. Respondent's crews made four visits to the site to correct the problem, and final payment was made on March 13, 1990 (Exhibit 8). Mickelson still was not satisfied, and Respondent advised him of the difficulty encountered in attempting to get 10 feet penetration and offered Mickelson three options, all at extra costs. These were (1) install sister piles, (2) relocate piles in hopes of finding less dense material in which to drive the piles, and (3) call in another contractor with equipment to drill the holes for the piles. Mickelson had another marine contractor come out to reset the piles to a greater depth, but this contractor was also unsuccessful. Mickelson then employed Ress Marine Construction who had drilling equipment with which to drill holes in which to set the tie poles. Ress Marine removed the piles installed by Respondent and drilled holes into which two tie poles were installed to a minimum depth of 10 feet. The removed piles which had been installed by Gibson Marine showed discoloration on the bottom three feet of these piles. One of Petitioner's witnesses (Ress) testified that he told Mickelson the piles appeared to have obtained only 3 to 3 1/2 feet penetration. Two of Respondent's witnesses who were on the scene doing the work when the piles were initially installed both testified the piles were driven to a penetration depth of not less than 7 to 8 feet. Respondent has owned Gibson Marine for the past 5 years, and this is the first customer complaint he had received, and these are the only charges ever filed against his certificate by Petitioner or any other regulatory authority.
The Issue All Three Cases Whether the Petitioners have standing to bring their respective challenges pursuant to Section 120.56(4), Florida Statutes? Case No. 10-5348RU Whether either or both Original Specific Condition 1 and the Department ECL Position constitute a rule? Case Nos. 10-6205 and 10-8197 Whether Specific Condition 5 constitutes a rule? Attorney's Fees Whether an order should be entered against the Department for costs and attorney's fees under Section 120.595(4), Florida Statutes?
Findings Of Fact The Draft Permit The Draft Permit (and its revisions) authorizes the County "to construct the work outlined in the activity description and activity location of this permit and shown on the approved permit drawings, plans and other documents attached hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26. The "activity description" and the "activity location" are detailed on the first page of the Draft Permit. See Joint Exhibit, Vol. III, Tab 9 (first page of 26). The drawings, plans and other documents attached to the Draft Permit are contained under Tab 10 of Volume III of the Joint Exhibit. The Parties Petitioner Guidry is co-trustee of the Guidry Living Trust (the "Guidry Living Trust"). He has independent authority to protect, conserve, sell, lease, encumber or otherwise dispose of trust assets. Those assets include a condominium unit in the Oceania Condominium. The condominium unit owned by the Guidry Living Trust includes an undivided interest held with all other unit owners in the common property at the Oceania Condominium. The common property includes real property that fronts the Gulf of Mexico located at 720 Gulf Shore Drive in the City of Destin, Florida. The real property has the MHWL of the Gulf of Mexico as its southern boundary. Petitioner Oceania is a condominium association established pursuant to Florida's Condominium Act, Chapter 718, Florida Statutes. It does not own any real property. Mr. Guidry testified that he is authorized in his capacity as president of the Association to initiate and pursue this administrative proceeding on its behalf. No documents were entered in evidence reflecting that Oceania's Board of Directors approved the filing of the petition. The owners of condominium units at the Oceania Condominium, including the Guidry Trust, comprise the membership of Oceania. The unit owners all own undivided shares in the Oceania Condominium common property including the real estate that extends at its southern boundary to the MHWL of the Gulf of Mexico. The owners did not vote on whether to file the petition in Case No. 10-05348RU. Petitioners David and Rebecca Sherry are leaseholders of real property where they reside. Located at 554 Coral Court, Number 511, Fort Walton Beach, Florida 32548, the property is in an area in Okaloosa County on Santa Rosa Island that is known as Okaloosa Island. The property leased by the Sherrys is not within the Western Destin Project. Petitioner John Donovan is a leaseholder of real property located at 909 Santa Rosa Boulevard, Numbers 131-132, El Matador Condominium, Fort Walton Beach, Florida 32548, in the same area as the Sherry's residence. Petitioner MACLA II, Ltd., is a Texas Limited Partnership. Louise Brooker is its president. It owns real property which fronts the Gulf of Mexico located at 620 Gulf Shore Drive, Destin, Florida. The southern boundary of the property is the MHWL of the Gulf of Mexico. The MACLA property is located adjacent to the shoreline that is the subject of the Western Destin Project. The Betty Price Hughes Qualified Vacation Residence Trust (the "Hughes Trust") owns real property at 612 Gulf Shore Drive. Its southern boundary is deeded the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Petitioner H. Joseph Hughes is a trustee of the Hughes Trust. Petitioner Kershaw Manufacturing Company, Inc., an Alabama corporation, is the owner of real property located at 634 Gulf Shore Drive, Destin, Florida. Its southern boundary the property is the MHWL of the Gulf of Mexico. The property is located adjacent to the shoreline subject to the Western Destin Project. Royce Kershaw is the president of the Kershaw Manufacturing Company. He testified that as president of the company, he has the authority to act on behalf of the company and has the power to bind the corporate entity. The Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Board of Trustees of the Internal Improvement Fund is responsible for stewardship of its public trust properties under Chapter 253, Florida Statutes. Included among those properties is the sovereignty submerged lands along the coast of the Gulf of Mexico. The ECL and the MHWL In the context of the Beach and Shore Preservation Act, the MHWL and the ECL were discussed by the Florida Supreme Court in Walton County v. Stop the Beach Renourishment, Inc., 998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court Case"): Pursuant to section 161.141, when a local government applies for funding for beach restoration, a survey of the shoreline is conducted to determine the MHWL for the area. Once established, any additions to the upland property landward of the MHWL that result from the restoration project remain the property of the upland owner subject to all governmental regulations, including a public easement for traditional uses of the beach. § 161.141. After the MHWL is established, section 161.161(3) provides that the Board must determine the area to be protected by the project and locate an ECL. In locating the ECL, the Board "is guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible." § 161.161(5). Pursuant to section 161.191(1), this ECL becomes the new fixed property boundary between public lands and upland property after the ECL is recorded. And, under section 161.191(2), once the ECL has been established, the common law no longer operates "to increase or decrease the proportions of any upland property lying landward of such line, either by accretion or erosion or by any other natural or artificial process." Walton County, at 1108. The Pre-project MHWL in This Case and the ECL The Pre-project MHWL called for by Original Specific Condition 1 was never established. No evidence was introduced as to where the Pre-project MHWL would have been located had it been set and in particular, where it would have been located in relation to an ECL. Rod Maddox is a long-time surveyor with the Department's Division of State Land in the Bureau of Survey & Mapping. See P-244. Mr. Maddox testified about his experience with pre-project MHWLs and where they are located in relation to ECLs. Familiar with the term "pre-project mean high water line," Mr. Maddox defined it as the mean high water line prior to the placement of fill used in a beach restoration project. See id. at 29. He testified that pre-project MHWLs have been required in the many beach restoration cases with which he is familiar. He testified further that when it comes to location, there is no difference between a pre-project MHWL and an ECL. The denominations may be different but Mr. Maddox testified "as to how . . . established, I see them as one and the same." Id. at 30. Original Special Condition 1: the Pre-project MHWL On December 31, 2009, the Department issued the NOI. Attached to it was the Draft Permit. The Draft Permit contained the following paragraph as Special Condition 1: Prior to construction of the beach restoration project, the Permittee must record in the official records of Okaloosa County a Certificate, approved by the Department, which describes all upland properties (including their owners of record) along the entire shoreline of the permitted project, with an attached completed survey of the pre-project Mean High Water Line ("Mean High Water Line Survey") conducted along the entire permitted project shoreline length. The Mean High Water Line Survey must have been completed in a manner complying with Chapter 177, Florida Statutes, as determined by the Department. No construction work pursuant to this joint coastal permit shall commence until the Certificate and attached Mean High Water Line Survey have been approved and archived by the Department's Bureau of Survey and Mapping, and the Department has received proof of recording of such documents (see Specific Condition No. 4.c.). The approved Certificate and attached Mean High Water Line survey shall be attached to, and kept as part of this joint coastal permit and authorization to use sovereign submerged lands. If in the future the Permittee seeks reimbursement from the State for costs expended to undertake (construct) the permitted project, then, prior to, and as a condition of receipt of any authorized and approved reimbursement, the Board of Trustees will establish an ECL consistent with the provisions of Chapter 161, Florida Statutes. The Permittee shall be required to record such a line in the Okaloosa County official records. Joint Exhibit, Vol. III, No. 9. The Oceania Petitioners, as landowners within the Project area, challenged the issuance of the Draft Permit on January 14, 2010. See Case No. 10-0516. Among the bases for the challenge was that the Department lacked authority to implement Original Special Condition 1 and, in particular, its requirement that the County record a completed survey of the pre-project MHWL in lieu of the establishment of an ECL. On July 26, 2010, the Department revised the Draft Permit to eliminate from the Project the common property owned by the unit owners of the Oceania Condominium. The change was supported by a letter from Michael Trudnak, P.E., of Taylor Engineering, Inc., on behalf of the County which stated: "On behalf of Okaloosa County, Taylor Engineering submits this request to modify the project area and Draft Joint Coastal Permit for the Western Destin Beach Restoration Project [file nos. excluded]. The applicant has decided to remove the Oceania Condominium property from the beach fill placement area." Joint Exhibit, Vol. III, Tab 15, Exhibit A. The revised project, as described in permit drawings enclosed with Mr. Trudnak's letter includes two reaches: Reach 1 extends from the east jetty of East Pass to approximately 600 ft east of FDEP reference monument R-22 (R22.6) and Reach 2 extends from approximately 200 ft east of R-23 (R-23.2) to R-25.5. The Oceania Condominium property is in the gap between the two beaches. Additionally, the letter requested that the Department modify Specific Condition 1 of the Draft Permit to reflect the modified project area so that the MHWL Survey requirement of Specific Condition 1 would exclude the Oceania Condominium property. In accord with the request, Special Condition 1 was amended to add the following language: "With respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc., members' common elements property, neither a pre-project Mean High Water Line survey, nor a Certificate with a description of the pre-project Mean High Water Line shall be recorded in conjunction with this coastal permit." Joint Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page 5 of 26. On August 4, 2010, as the Department neared the end of its case in the third day of the hearing, it announced that the Revised Draft Permit would "be revised [again, this time] to require the establishment of an ECL under the applicable statute." Tr. 621. The draft permit, accordingly, was revised for a second time (the "Second Revised Draft Permit"). The Department carried out the second revision in a notice filed at the Division of Administrative Hearings on August 18, 2010 (the August 18, 2010, Notice). The August 18, 2010, Notice contains two changes to the First Revised Draft Joint Permit. The first change deletes the existing language in Original Specific Condition 1 (the language challenged in Case No. 10-5348RU) in its entirety. It substitutes the following language: Prior to construction of the beach restoration project, the Board of Trustees will establish an Erosion Control Line along the shoreline of the beach restoration project. The Erosion Control Line shall be established consistent with the provisions of ss. 161.141-161.211, Florida Statutes. An Erosion Control Line shall not be established in conjunction with this joint coastal permit with respect to the shoreline seaward of the Oceania Owner's [sic] Association, Inc. members' common elements property. In lieu of conducting a survey, the Board of Trustees may accept and approve a survey as initiated, conducted, and submitted by Okaloosa County if said survey is made in conformity with the appropriate principles set forth in ss. 161.141-161.211. Department of Environmental Protection's and Board of Trustees of the Internal Improvement Fund's Notice of Revisions to the Proposed Joint Coastal Construction Permit, page 3 of 4. The second change is made with respect to Specific Condition No. 4(c) of the First Revised Draft Permit, one of a list of items to be submitted to the Department for approval prior to the commencement of construction and the issuance of a Notice to Proceed by the Department. The existing language is deleted in its entirety and the following language is substituted: Written documentation that the Erosion Control Line required by Special Condition Number 1 has been filed in the public records of Okaloosa County. Id. The Department ECL Position Chapter 161: Beach and Shore Preservation Chapter 161, Florida Statutes, governs "Beach and Shore Preservation." "Parts I and II of this chapter may be known and cited as the 'Beach and Shore Preservation Act.'" § 161.011, Fla. Stat. Part I governs "Regulation of Construction, Reconstruction, and Other Physical Activity." Sections 161.011 through 161.241 comprise Part I. The Department developed its position on ECLs claimed by Petitioners to be an Unadopted Rule by considering Part I, in particular Sections 161.088 (which declares the public policy to properly manage and protect Florida's beaches) through 161.211. At some point in 2009, the Department saw a distinction related to ECLs in Sections 161.088-161.211 between beach restoration projects where state funding was used for construction and projects where no state funds were used. The former seemed to require ECLs, the latter not. Several statutory provisions were viewed as particularly relevant. For example, Section 161.141, Florida Statutes, declares that it is the public policy of the state "to cause to be fixed and determined, pursuant to beach restoration . . . projects, the boundary line between sovereignty lands . . . and the upland properties adjacent thereto " The section that mainly governs ECLs is Section 161.161. It provides the procedure for approval of projects for the restoration and maintenance of critically eroded beaches, subject to a beach management plan which is funded, in part, by the state. With regard to ECLs, the statute provides: Once a project [for the restoration and maintenance of a critically eroded beach] is determined to be undertaken, a survey of all or part of the shoreline within the jurisdiction of the local government in which the beach is located shall be conducted in order to establish the area of beach to be protected by the project and locate an erosion control line. * * * Upon completion of the survey depicting the area of the beach erosion control project and the proposed location of the erosion control line, the board of trustees shall give notice of the survey and the date on which the board of trustees will hold a public hearing for purpose of receiving evidence on the merits of the proposed erosion control line and, if approval is granted, of locating and establishing such requested erosion control line in order that any persons who have an interest in the location of such requested erosion control line can be present at such hearing to submit their views concerning the precise location of the proposed erosion control line. * * * The board of trustees shall approve or disapprove the erosion control line for a beach restoration project. In locating said line, the board of trustees shall be guided by the existing line of mean high water, bearing in mind the requirements of proper engineering in the beach restoration project, the extent to which the erosion or avulsion has occurred, and the need to protect existing ownership of as much upland as is reasonably possible. § 161.161, Fla. Stat. Development of the Department's Position on ECLs Prior to 2009, the Department's established ECLs for beach restoration projects whether the project's construction was supported by state funding or not. There was an exception: when the property landward of the MHWL was owned by the state. In such a case, the Department saw no need to set an ECL since both the sovereignty lands and the adjacent uplands property are owned by the state. This position held at least through January 15, 2009, when the Department held a workshop and hearing pursuant to Section 161.161, Florida Statutes, in Okaloosa County to establish an ECL for the Western Destin Project. The hearing officer who conducted the ECL hearing was West Gregory, Department Assistant General Counsel. While consideration of where the ECL should be established for the Western Destin Project was underway, there were ongoing discussions by e-mail and in briefings of whether the statute required an ECL. The discussion was prompted when Mr. Gregory, as Department Assistant General Counsel, drafted a memorandum (the "Draft Memorandum") to Michael Barnett, Chief of the Bureau of Beaches and Coastal Systems (the Bureau) to be sent through Paden Woodruff, an Environmental Administrator. The memorandum related to another beach restoration project in Okaloosa County: a project involving Eglin Air Force Base. The Draft Memorandum shows a date of January "XX", 2009, and is stamped "DRAFT." P-119. It presents the question "Should . . . [the Department] require the United States Air Force (USAF) to establish an erosion control line (ECL) for the beach restoration project located on Eglin AFB?" Id. The Draft Memorandum provides a brief answer: "No, . . . because the beach . . . is not critically eroded." Id. The memorandum recognizes the public policy of the state to fix the boundary between public and private lands for beach restoration projects in Section 161.141, Florida Statutes, and a requirement that the Board of Trustees "must establish the line of mean high water prior to the commencement of a beach restoration project," id., leading to the suggestion that each and every beach restoration project must establish an ECL. The Draft Memorandum, however, construes Section 161.141, Florida Statutes, with Section 161.161, Florida Statutes, and draws support from an Attorney General Opinion and the Walton County Florida Supreme Court case to conclude that it is only when a project is undertaken with state funding that an ECL must be established. In the case of the Eglin AFB beach restoration projects, the Draft Memorandum concludes: Id. This determination not to establish an ECL on the Eglin AFB beach restoration project would not preclude the USAF from obtaining a JCP permit. Rather, it precludes the USAF from receiving state funding assistance. The Draft Memorandum was not sent to the intended recipients. It was submitted to two other lawyers in the Department. Mr. Gregory did not receive comments from them. Although no comments were made to Mr. Gregory after the draft of the memorandum was sent to other members of the legal staff, the subject remained under discussion in the Department in early 2009. Sometime in early 2009, based on a legal analysis of Department attorneys, the Department took the position that an ECL is required to be set when state funds are used for the construction of a project. The converse of this position, that an ECL is not required to be set when no state funds are involved, is the statement alleged to be an unadopted rule. Two permits were issued that did not require an ECL: one for the Eglin AFB beach restoration project in March of 2009, and another that was an emergency permit for Holiday Isle. As with Specific Condition 1 in the Western Destin Project, the determination to not require an ECL was because of the lack of state funding. As Mr. Barnett testified about the two permits, there "is no State cost share for construction . . . [and] that's the reason [the Department] didn't require establishment of an ECL." Tr. 1279. Mr. Gregory's Draft Memorandum was never finalized. The Department issued three permits or draft permits (including for the Western Destin Project) with specific conditions that required pre-project MHWLs and that did not require ECLs. Otherwise, the Department has not committed the Department ECL Position to writing. Nonetheless, the Department ECL Position was stated in a deposition taken in this case on July 26, 2010. On July 26, 2010, the deposition of Janet Llewellyn, the Director of Water Resources Management was taken by Petitioners. Director Llewellyn is "responsible ultimately for all the projects that are processed and actions taken out of [the] division." P-223 at 10. These include permits issued by the Bureau and in particular, the Draft Permit, First Revised Draft Permit and the Second Draft Permit for the Project. When asked about the Department's statement that an ECL is not required when there is not state funding, Ms. Llewellyn preferred to rephrase the Department position as to when an ECL is required rather than when it is not required. She then testified that an ECL is required when there is "state funding involved through [the Department's] funding program." Id. at 13. Ms. Llewellyn was unable to pinpoint the moment the Department reached such a position other than: [t]he question came up sometime in the last year or two -- I couldn't tell you when -- about what the statute actually required in terms of when it was proper to set an erosion control line or required. And our attorneys did a legal analysis, again, of the statute, and that was their legal opinion of what the statute required. Tr. 14. Whatever the date that such a position was precisely firmed up, Ms. Llewellyn was able to testify on July 26, 2010, "that if state funding is going to a project, than an ECL needs to be set. That's what the statute requires." Id. This statement was based on the opinions of Department attorneys prior to their use in connection with the issuance of beach restoration permits in Okaloosa County. The Department has not initiated rule-making with respect to its ECL Position. Whether rule-making would be initiated was not known by the Bureau Chief on August 24, 2010, during his testimony in the final hearing. Change of Position The Department modified its position on ECLs that it appeared to have at the time of Ms. Llewellyn's deposition on August 4, 2010. As detailed above, it announced that an ECL would be required for the Western Destin Project, after all. The modification was formalized with the filing of the Second Revised Draft Permit on August 18, 2010. Specific Condition 5 Before the challenged language in Specific Condition 5 was added by the First Revised Draft Permit, the Department had relied on General Condition 6 to give notice to permittees that the permit did not allow trespass: This permit does not convey to the Permittee or create in the Permittee any property right, or any interest in real property, nor does it authorize any entrance upon or activities on property which is not owned or controlled by the Permittee. The issuance of the permit does not convey any vested rights or any exclusive privileges. Joint Ex. 9. Based on the petitions in the Permit Challenge Cases, the Department proposed in the First Revised Draft Permit to add to Specific Condition 5 the language that is underscored in the following: The Permittee is advised that no work shall be performed on private upland property until and unless the required authorizations are obtained. Sufficient authorizations shall included: (1) written evidence of ownership of any property which will be used in carrying out the project; (2) authorization for such use from the property owner which upland of mean high-water; (3) construction and management easements from upland property owners; or (4) a judgment from a court of competent jurisdiction which reflects that such authorization, in whole or in part, is not required. The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7) days in advance of a pre-construction conference, the Permittee shall provide the written authorizations for the portion of the project for which construction is about to commence, as required above, written notification, advising the participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. Joint Exhibit, Volume III, Tab 15, the First Revised Draft Permit, Page 7 of 26. There was no evidence that the language added to Specific Condition 5 by the First Revised Draft Permit had been in any other permits or that the Department intended to use the language in any other beach restoration permits. Other than whatever might be gleaned from the Draft Permit, itself (and its revisions), there was no evidence offered that the property of any of the petitioners, in fact, would be used in the Western Destin Beach Project.
