The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
The Issue The issue is whether to approve an application by Respondent, Dan R. Hughes Company, L.P. (applicant or Hughes), for an oil well drilling permit authorizing the drilling of an exploratory oil well in Collier County, Florida.
Findings Of Fact The Parties Mosher resides on a three-acre lot at 4695 26th Avenue Southeast, Naples, Florida. His residence is around 2,500 feet west of the proposed wellsite, but Mosher says that the eastern edge of his lot "might be 2,000 feet" from the drilling site. He has not, however, measured the actual distance to confirm this assertion. Preserve is a Florida non-profit corporation whose purpose is to educate the public on issues affecting the preservation and protection of the environment, particularly the environment of south and southwest Florida. It was formed in response to Hughes' intention to drill for oil in the area. The corporation is not a membership organization; rather, it has around 25 non-member, active volunteers, six member directors, and an unknown number of donors. Excluding Mosher, the other member directors live between three and ten miles away from the proposed wellsite. The record does not show where the 25 volunteers reside. The corporate representative testified that four directors, including Mosher, regularly use the Florida Panther National Wildlife Refuge (Refuge) to observe wildlife and habitat. However, the public access point to the Refuge appears to be at least several miles from the wellsite. Based upon an email survey, he stated that a "substantial number [around 36] of donors and volunteers utilize the panther refuge," but he was unaware of when, or how often, this occurred. About every six weeks, meetings are conducted at Mosher's home, which are attended by some, but not all, of the directors and volunteers. Schwartz's primary residence is in Lake Worth (Palm Beach County) where he serves as the unpaid executive director of the South Florida Wildlands Association.3 He sometimes provides paid tours in the Everglades and Big Cypress Swamp and has led "numerous" free hikes into panther habitat to look for signs of panthers. These hikes are limited to the hiking trails in the southeast corner of the Refuge, which is the only area that can be accessed by the public. He represented himself as an advocate for the protection of wildlife habitat in the greater Everglades, with a particular interest in the Florida panther. Hughes is a Texas limited partnership engaged in the business of oil and gas exploration, which is registered to do business in the State of Florida. Hughes has applied for a permit to drill an exploratory well for oil in Collier County. If the well is commercially viable, Hughes must apply for an operating permit at a later time. The Department has jurisdiction to issue permits for the drilling and exploring for, or production of, oil under part I, chapter 377. Pursuant to that authority, the Department reviewed the oil and gas well drilling permit application. The Application and Project After the application was deemed complete by the Department, it was distributed for comment to a number of local, state, and federal agencies. While some commented on the application, no agency had any unresolved concerns at the end of the application process. Hughes met all rule requirements for performance bonds or securities, and it provided all information required by rule. The proposed site is located on the southeast corner of an active farm field in the Big Cypress Swamp watershed, just north of a speedway now used as a test track. Surface holes for oil wells are commonly located on farm land, and farm fields are compatible with oil wells. Based upon a mineral lease between Hughes and the owner of the land, Collier Land Holdings, Ltd., Hughes has the right to locate and drill the well at the proposed surface hole location. The Refuge was established by Congress in 1989 to protect the Florida panther and its habitat and is located approximately 20 miles east of Naples. Around 98 percent of the Refuge is closed to any public activity. The project is consistent with the comprehensive conservation plan for the Refuge prepared by the United States Fish and Wildlife Service (USFWS), in that the plan recommends "slant drilling" off of the Refuge. Although Mosher and Preserve argue that the drill hole should be moved further east into wetlands, and Schwartz contends that it should be moved further west away from the Refuge, the proposed location of the drilling pad and project site is reasonable with respect to the nature, appearance, and location of the proposed drilling site. Likewise, the location is reasonable with respect to the type, nature, and extent of Hughes' ownership. The proposed activity can best be characterized as a "resource play," where an operator drills toward a known resource. This is distinguished from a wildcat operation, where the operator is drilling in an unproven area. Hughes proposes to target the rubble zone (i.e., the lower zone) within the lower Sunniland formation, a geologic formation thousands of feet below the ground surface that runs through southwest Florida. Hughes will first drill a vertical pilot hole and then drill horizontally from the hole bottom in a southeast direction toward a formerly drilled oil well known as the Tribal Well. In order to increase the probability of locating commercially available petroleum, Hughes plans to proceed from west to east in order to arrive at a perpendicular direction of existing limestone fractures as the drilling approaches the Tribal Well. When that well was drilled vertically into the rubble zone in the 1970s, oil rose to the ground surface. Thus, the indicated presence of oil is sufficient to warrant and justify the exploration for oil at this location. The proposed depth of the pilot hole is 13,900 feet measured depth (MD/13,900 feet true vertical depth (TVD)), which will allow assessment of the upper Sunniland, lower Sunniland, and Pumpkin Bay Formations. If the evaluation determines that the well will likely be commercially productive, Hughes will complete a 4,100-foot horizontal leg in the lower Sunniland rubble zone with a landing depth at 12,500 feet MD/12,064 TVD and a total depth of 16,600 feet MD/12,064 feet TVD. The footprint for the drilling pad will be 225 feet by 295 feet, or 2.6 acres, with a two-foot earthen berm around the perimeter of the operating area to contain all water on the site. A secondary containment area within the perimeter of the site will be covered by high-density polyethylene to contain and collect any accidental spills. A drilling rig, generators, and other drilling equipment will be on the pad during drilling operations. A maximum of 20 persons will be at the site, and then only for one day of operations. At all other times, Hughes anticipates there will be a five-person drill crew plus support personnel on site. After drilling, Hughes will remove its equipment. Once the access road is built and the equipment put in place, the drilling activities will take place 24 hours per day, seven days per week, and will be completed in approximately 60 to 70 days. The on-site diesel generators will run simultaneously 24 hours per day while drilling is taking place. The pad will be illuminated at night with lights on the drilling derrick and throughout the pad. Construction of the drilling pad will require trucking around 12,000 to 14,000 cubic yards of fill to the drilling location. Additional traffic for bringing in fill, piping, and related equipment will occur, but the exact amount of traffic is unknown. The South Florida Water Management District (SFWMD) previously approved an environmental resource permit (ERP) to allow the construction and operation of a surface water management system on Camp Keais. The United States Army Corps of Engineers (USACE) also permitted the same system under the Clean Water Act. The latter permit requires mitigation for wetlands and Florida panther habitat compensation. Based on the proposed wellsite, the SFWMD modified the ERP to allow a culvert and access to the proposed wellsite. In addition to the oil drilling permit application, Hughes has applied for two water well drilling permits from the SFWMD, and an injection well drilling permit. Petitioners and Intervenor's Objections The challengers have raised a number of objections that they assert require denial of the application. Conflicting testimony was presented on these issues, which has been resolved in Respondents' favor as being the more credible and persuasive testimony. Mosher and Preserve Mosher and Preserve raise two broad objections. First, they contend that hydrogen sulfide gas (H2S) is likely to be encountered in the drilling of the proposed well. They further contend that the H2S contingency plan submitted by Hughes is not sufficient to evacuate the public in the event of an incident where H2S is uncontrollably released under pressure. Second, they contend that the Committee did not review the application under the process contemplated by section 377.42(2). Except for these two objections, they agree that no other issues remain. See TR., Vol. I, p. 33. Within the petroleum industry, drilling operators create H2S plans when there is reason to believe that the operator may encounter H2S while drilling. This practice is codified in Florida Administrative Code Rule 62C-27.001(7), which requires a contingency plan only when H2S is "likely" to be encountered while drilling. The plan must "meet generally accepted industry standards and practices," and it must contain measures "for notifying authorities and evacuating civilians in the event of an accident." Id. See also rule 62C-26.003(3), which requires a contingency plan "if appropriate." The plan is prepared for two main users: the personnel working at the drilling site; and local emergency management officials, who must plan and train for the implementation of emergency activities. The parties agree that the "generally accepted industry standards and practices" for the oil and natural gas industry are found in the operating standards and recommended practices adopted by The American Petroleum Institute (API), a trade association for the oil and natural gas industry. Recommended Practice 49 (API 49) is the generally accepted industry standard for oil and gas drilling operations likely to encounter H2S and was relied upon by all parties throughout the hearing. The standard includes guidance on personnel protection measures, personnel training, personnel protection equipment, and community contingency planning. API 49 recommends the use of a community warning and protection plan when atmospheric H2S exposures beyond the well site could exceed potentially harmful exposure levels and could affect the general public. Mosher/Preserve's expert opined that H2S might be encountered at levels as high as 21 percent (210,000 parts per million (ppm)) in southwest Florida, and that "it's quite likely" H2S would be encountered at the proposed wellsite. At the same time, however, he agreed with the assessment of Respondents' experts that the likelihood of encountering H2S at this site was merely "possible," "sporadic," and "unlikely," and that there was "zero" potential of a severe H2S release under high pressure. Florida has two major oil producing areas: the Sunniland Trend in southwest Florida and the Smackover formation near Jay, Florida, in the northwest part of the state. Unlike the Smackover formation which has higher temperatures and pressures and a high concentration of H2S, the Sunniland Trend has normal temperatures and pressures and a sporadic presence of H2S. Less than two percent of wells in southwest Florida have been reported to contain H2S, and those reports relate to production wells where bacteria (biological contamination) was likely introduced into the formation during production. Of over 300 oil wells drilled in southwest Florida, only six were reported to have encountered H2S. Notably, the Tribal Well, located 1.5 miles to the southeast of the proposed site, encountered relatively low pressure during drilling and had no H2S, and another well located 12 miles to the north likewise had no high pressure or H2S. It is unlikely that Hughes will encounter high pressure or H2S if it drills at the proposed site. Even though it is unlikely that high pressure or H2S will be encountered during the drilling of this proposed well, Hughes still submitted an H2S contingency plan as part of the drilling application. The Department determined the plan provided an effective design to detect, evaluate, and control any hazardous release of H2S. In response to public concerns, in January 2014 Hughes revised its plan to provide more protections. The revised plan exceeds the guidance provided in API 49. The revised plan clarifies and adds multiple protections, including implementing the plan at a vertical depth of 9,000 feet, which is 2,700 feet before the zone that Mosher claims could contain H2S; clarifying that an H2S alarm notification at 15 ppm would result in an instant well shut-in (i.e., closure of the well) to prevent the escape of H2S; instituting a reverse 911 call system to allow local officials to notify the public by telephone of any incident; creating an air dispersion model to understand the likelihood of public exposure; and adding H2S scavengers to the drilling mud. Adding H2S scavengers in the mud is a protective measure. Specifically, the zinc oxide scavengers will react with H2S to create benign zinc sulfide and water. Even if H2S is present in the formation, the H2S scavengers will neutralize the H2S before it could reach the surface. The H2S scavengers will effectively eliminate the likelihood of H2S escaping from the well during drilling operations. The drilling plan requires the Trinity C formation (which Hughes estimated will begin at a depth of around 11,850 feet) to be cemented off and sealed once drilled. This formation will not be encountered in the first 15 or 20 days of drilling. Once encountered, the formation will be exposed for only four to six days. Even if H2S were encountered during this short exposed duration, all of the protections included in the revised plan would be in place, including overbalanced drilling mud, H2S scavengers, blowout preventers, H2S monitors, and alarms. When wells are drilled, there are numerous personnel monitoring the drilling fluid, or mud, which is designed not only to carry cuttings to the surface, but more importantly to act as a barrier to keep fluids or gasses in the geologic formation. The mud is weighted with additives to combat reservoir pressures. Drill operators want the same amount of mud pumped into the hole as the amount flowing back up. If more fluid is flowing back up, then the mud is not heavy enough to hold back the fluids or gasses encountered. If this imbalance occurs, the well is shut- in immediately and the mud weight is adjusted. A shut-in can be accomplished in just a few seconds. Anything in a shut-in well will stay in the well. Hughes' normal drilling plan is to slightly overbalance the mud weight. This ensures that nothing unintentionally escapes from the reservoir. Mosher and Preserve contend that if H2S is encountered, dangerous concentrations of H2S would leave the wellsite. In response to this type of concern, as part of the revised plan, Hughes conducted an air dispersion model using the methodology provided by API 49. The API 49 model is a Gaussian model with default values reflecting the worst-case exposures. The peer- reviewed and conservative model calculated by Dr. Walker looked at H2S concentrations of 10, 15, and 100 ppm. At the extreme case, a 100-ppm release at the well would be reduced below 10 ppm within about 20 feet from the well and further reduced to one ppm within 60 feet from the well. Although H2S is unlikely to escape the well, 100 ppm was selected as a precautionary level because this level is an immediate danger to human life and health. Reaching 100 ppm is highly unlikely because at an instantaneous reading of 15 ppm, the well is immediately shut-in. The air dispersion model results demonstrate that atmospheric H2S exposures beyond the wellsite could not exceed potentially harmful exposure levels nor could exposures affect the general public. Thus, even though the plan includes a community warning and protection provision, it is not required under API 49. In an abundance of caution, however, the plan provides for a public notification zone of 2,000 feet in case of an H2S release. This zone is two orders of magnitude beyond the 20- foot, 10 ppm distance dispersion of H2S based on the modeled worse case release and exceeds any required notification zones in other states. The notification boundary is conservative, as compared with industry standards. While Mosher's expert recommended more stringent standards than API 49, he knew of no contingency plan for an oil drilling permit in the United States that included his recommended standards. Mosher's expert testified that based on his review of literature, the lowest observable adverse effect from H2S was at concentrations of 2.1 ppm. Based on a worst case scenario release of 100 ppm of H2S, the gas would disperse to a concentration of 2.1 ppm in less than 40 feet from the well. The property boundary abutting the neighborhood to the west is over 800 feet from the well. API 49 expressly provides that wellsite personnel should be provided protection devices if concentrations of H2S exceed 10 ppm for an eight-hour time-weighted average. The revised plan requires wellsite personnel to don a self-contained breathing apparatus if the monitors encounter an instantaneous reading of 10 ppm H2S. Instantaneous readings are more protective of human health than the time-weighted averages proposed by Mosher's expert. Using an instantaneous trigger is another area where the revised plan exceeds the recommendation of API 49. The greater weight of evidence demonstrates that the H2S contingency plan meets or exceeds guidance of API 49. The revised plan requires hands-on training for public officials and fire/rescue staff before reaching the depth of 9,000 feet. The revised plan further requires hands-on training and drills related to the procedures for use, and location of, all self- contained breathing apparatus and evacuation procedures. The plan is a complete and accurate contingency plan that will assist operators and local emergency management in the unlikely event of an H2S escape. It exceeds the degree of caution typically employed in industry standards. Mosher and Preserve contend that the plan fails to include specific instructions and training for nearby residents in the event of an emergency. However, emergency plans are designed for use by operators at the facility and the local emergency management officials rather than nearby residents. Thus, the Department did not require the applicant to provide specific instructions for those residents. Mosher and Preserve also contend that the plan fails to adequately describe the evacuation routes in the event of an emergency. However, evacuation routes and the potential closure of roads are normally in the domain of local governments, as the operator and Department have no control over this action. Mosher and Preserve contend that the plan does not include complete and accurate information for all property owners in the area. This is understandable since some property owners either failed to respond to inquiries by Hughes when it assembled the information for the plan or were reluctant to provide any personal information. Recognizing this problem, the Department reviewed the website of the Collier County property appraiser to complete the information. To the extent information on certain parcels may not be complete, Hughes can update that aspect of the plan on an on-going basis before operations begin. If a permit is issued, the Department will continue to coordinate with Collier County and other local emergency management officials for the purpose of planning to implement the contingency plan. Based on the foregoing, the evidence establishes that the probability of a dangerous release of H2S beyond the wellsite is highly remote and speculative in nature. The revised contingency plan is consistent with industry standards and satisfies the requirements of the rule. Schwartz Like Mosher and Preserve, Schwartz agreed that except for the concerns expressed in his amended pleading, no other issues remain. Schwartz first contends that Hughes did not demonstrate sufficient efforts to select a proposed location for drilling to minimize impacts as required by rule 62C-30.005. Subparagraph (2)(b)1. requires that drilling sites be located "to minimize impacts on the vegetation and wildlife, including rare and endangered species, and the surface water resources." In particular, Schwartz is concerned about the potential impact on the Florida panther, an endangered species. Hughes selected the proposed site primarily because of its proximity to the Tribal Well, which had a significant show of oil. In order to increase the chances for commercial production, the horizontal segment of the well needs to be perpendicular to the natural fractures in the limestone. In this location, Hughes must drill horizontally from west to east in the direction of the Tribal Well. Hughes was unable to locate the well on the automotive test track directly south of the agricultural field and west of the Tribal Well because of objections by Harley-Davidson, then the owner of the track. A second proposed location just east of the test track was considered but Harley-Davidson would not grant access from the track to the upland sites on the adjacent location. A third option was to construct a lengthy access road from the north to one of the upland sites just east of the test track. However, this alternative would have resulted in significant impacts to wetlands and native vegetation. The proposed site offers the least amount of environmental impact. It is 1.5 miles from the Tribal Well. It has no federal or jurisdictional wetlands on the site, and groundwater modeling submitted with an application for a water use permit demonstrated that the proposed use of water will not adversely affect surrounding wetlands. The proposed access road and drilling pad will not impact any cypress-mixed forest swamps, hardwood hammocks, mangrove forests, archeological sites, or native ceremonial grounds. Nor will they adversely affect known red-cockaded woodpecker colonies, rookeries, alligator holes, research sites, or pine uplands. The evidence establishes that Hughes chose a site that minimized environmental impacts. Schwartz also contends that the wellsite activities will directly decrease the recovery chances of the Florida panther. According to Schwartz, this decrease will occur because the activities involve creating an access road, truck traffic, noise, lights, and vibrations. He also asserts that the proposed wellsite will result in a small amount of direct habitat loss when the cattle field is converted to a drilling pad. The USFWS has developed a panther scientific habitat assessment methodology. It relies upon peer-reviewed studies that found that panthers will select land cover types while avoiding others. The methodology ranks the value of land cover types from zero to ten based on the potential for panther selection. Applying the USFWS' scoring to the proposed wellsite, an improved pasture area has a value of 5.2, which means the land cover is neither actively selected nor avoided by panthers. The areas to the south and east of the proposed wellsite are forested wetlands and forested uplands, which have substantially higher values that range from 9.2 to 9.5. If converted to an open water reservoir under the Camp Keais ERP, the site value would be zero, the land cover type most avoided by panthers. The underlying USACE permit specifically required panther habitat compensation. Hughes' expert established that the proposed site minimizes impacts on wildlife by avoiding habitat selected by panthers such as wetlands, forested uplands, saw palmetto thickets, fresh water marshes, prairies, and native habitats. Based on a dozen visits to the site for the purpose of conducting vegetation mapping and wildlife surveys, the expert concluded there are no panthers currently known to be living, breeding, or denning on the site. A home range for a panther is the area providing shelter, water, food, and the chance for breeding. The typical home range for a male panther is 209 square miles, and female home ranges average around 113 square miles. The evidence establishes the proposed drilling activity will not interfere with the panthers' use of the site. Approval of the permit will not remove or push any panthers out of their home range. Hughes' expert opined that the four male panthers, which historically traversed the area within a mile of the proposed wellsite, would only likely move through the area every 15 or 20 months or longer. The temporary nature of the drilling activities means the panthers may not even be near the location during that time. If a panther is near the location and frightened by any activities, it will avoid the area, but will eventually return. Based on the large home range of the panther, the temporary activities will not increase the likelihood of intraspecies aggression or decrease panther survivability. The more persuasive evidence is that panthers are adaptable. They are habituated to the drilling operations in southwest Florida based on over a hundred thousand telemetry data points taken near 93 oil wells in the primary zone. Panthers are not threatened by the presence of humans. In fact, they live and den in and around residential communities and active agricultural operations. Panthers need prey, water, and shelter. The drilling activities will not adversely affect prey availability or impact water resources. The proposed wellsite's location within a disturbed agricultural field will not impact the panther's ability to shelter. During the permit review process, the Department requested input from the USFWS, the Florida Fish and Wildlife Conservation Commission (FFWCC), and other interested parties regarding the proposed drilling permit. No formal comments were offered by the USFWS, and its biologist for conservation planning indicated informally that the surface impacts from an oil well are "very minor." Likewise, the FFWCC offered no formal comments on the application. The evidence supports a finding that the proposed permit activities will not affect the panther's use of, or travel to and from, the Refuge. The activities will not affect the panthers' availability of prey or increase panther competition for food or home range territory. The drilling will not adversely affect the panther's breeding, survivability, or the recovery of the species. The only other threatened or endangered species found in the vicinity of the proposed site was an eastern indigo snake, which was located two and one-half miles away and would not travel to the proposed wellsite, as its home range is up to a maximum of 450 acres. Schwartz further contends that section 377.242 requires that the permit be denied because the proposed wellsite is within one mile from the seaward (western) boundary of the Refuge. The Refuge is located entirely inland and does not have a seaward boundary, as contemplated by section 377.242(1)(a)3. Therefore, no drilling will be located within one mile of the seaward boundary of any state, local, or federal park, aquatic preserve, or wildlife preserve. This is consistent with the Department's routine and long-standing interpretation of the statute. Big Cypress Swamp Advisory Committee Petitioners and Intervenor initially contended that the permit should be denied because a meeting of the Committee was never convened pursuant to section 377.42. The Committee, however, met on March 11 and 31, 2014. Although a majority of the Committee voted to recommend that the Department deny the permit on various grounds, the recommendation of the Committee is not binding on the Department, and after consideration, was rejected. In their Proposed Recommended Orders, the opponents now contend that the permit should be denied because the Committee did not meet before the Department issued its proposed agency action. For the reasons stated in the Conclusions of Law, this contention is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order issuing Permit No. 1353H, without further modifications. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2014.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED as follows: That the Motions to Dismiss the Notice of Appeal of Sarasota County, Florida, filed by Beker Phosphate Corporation and Manatee County, Florida, be granted, and that the Notice of Appeal of Sarasota County, Florida, be dismissed. That the Motion to Intervene filed by the City of Sarasota be denied, and that the Motion to Dismiss the appeal of the City of Sarasota filed by Beker Phosphate Corporation be granted. That the Petition to Intervene filed by the City of Anna Maria be denied, and that the Motion to Dismiss Notice of Appeal of the City of Anna Maria filed by Beker Phosphate Corporation be granted. That the Motion to Strike Answer of Beker Phosphate Corporation contained in the Response to Motion to Dismiss filed by Sarasota County be denied. That the Motion to Strike Answer of Manatee County, Florida, made orally be Sarasota County at the hearing conducted in this cause on April 14, 1975, be denied. That the Requests for Issuance of Subpoenas and the Motion for Order Permitting Entry Upon Land filed by Sarasota County, and the Motion for Protective Order filed by Beker Phosphate Corporation be denied on grounds of mootness. DONE and ENTERED this 29th day of April, 1975, at Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-0705 COPIES FURNISHED: Honorable Reubin O'D. Askew Honorable Ralph Turlington Governor Commissioner of Education State of Florida State of Florida Capitol Building Capitol Building Tallahassee, FL 32304 Tallahassee, FL 32304 Honorable Bruce Smathers Honorable Gerald Lewis Secretary of State Comptroller State of Florida State of Florida Capitol Building Capitol Building Tallahassee, FL 32304 Tallahassee, FL 32304 Honorable Robert L. Shevin Wallace W. Henderson Attorney General Assistant Secretary State of Florida Department of Administration Capitol Building 530 Carlton Building Tallahassee, FL 32304 Tallahassee, FL 32304 Honorable Thomas O'Malley Lewis F. Hubener, Esq. State Treasurer Attorney for Division of State of Florida State Planning Capitol Building 660 Apalachee Parkway Tallahassee, FL 32304 Tallahassee, FL 32304 Roger Tucker, Esq. John P. Harlee, III, Esq. Attorney for Tampa Bay Regional HARRISON, HARLEE & PORGES Planning Council Manatee National Bank Building 3151 Third Avenue North Bradenton, FL 33505 Suite 511 St. Petersburg, FL 33713 Lewis G. Bartow, Esq. Honorable Dan McClure S.E. National Bank of Chairman of Board of County Bradenton Commissioners Suite 58 Manatee County Courthouse Bradenton, FL 33505 Room 220 Bradenton, FL 33505 Richard A. Hampton, Esq. Richard E. Nelson, Esq. 406 13th Street West NELSON, STINNATT, ET AL. Bradenton, FL 33505 2070 Ringling Boulevard Sarasota, FL 33577 William C. Strode, Esq. Roy C. Young, Esq. STRODE, HEREFORD & TAYLOR Attorney for Beker Phosphate 2051 Main Street Corporation Sarasota, FL 33577 P.O. Box 1833 Attorney for City of Sarasota Tallahassee, FL 32304 Ernest S. Marshall, Esq. Honorable Doyle Conner Attorney for City of Anna Maria Commissioner of Agriculture 615 9th Street West State of Florida Bradenton, FL 33505 The Capitol Tallahassee, FL 32304
The Issue The issues remaining in this case are: (1) whether New River Solid Waste Association (NRSWA) requested that its permitted bioreactor landfill system be included as part of its application for renewal of its operating permit for the New River Regional Landfill in Union County, Florida; (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1); and (3) whether the prevailing party is entitled to an award of attorney fees and costs under Section 403.412(2)(f). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact NRSWA is comprised of Union, Baker, and Bradford Counties and was formed to share the costs associated with solid waste disposal. NRSWA owns and operates the New River Regional Landfill in Union County. The landfill was initially permitted in 1990 and was expanded and the original permit renewed in 1995 for an additional five years, expiring on November 6, 2000. The landfill now has a permit for disposal of Class I waste in three cells, with a fourth under design; it also has a permit for disposal of Class III waste and a permit for a waste tire collection center. Cells 1 and 2 were retired, and in July 1999 NRSWA applied to modify its operating permit (Permit No. SC63-271982) to allow construction and operation of a bioreactor landfill system on retired cells 1 and 2. On June 26, 2000, DEP gave notice of its intent to issue NRSWA a permit modification to construct and operate the bioreactor system. On July 11, 2000, Petitioner, Paul Still, timely filed a Petition for Administrative Hearing to challenge DEP's proposed agency action. On August 15, 2000, DEP referred the matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition for Administrative Hearing for lack of standing. On September 8, 2000, NRSWA applied to DEP for renewal of Permit No. SC63-271982 for continued operation of its landfill. The renewal application requested that all landfill permits be consolidated into the renewal permit as a single operating permit. However, at the time Case No. 00-3448 on the bioreactor modification application remained pending, and the renewal application did not specify the bioreactor modification as part of the renewal application. Frank Darabi, NRSWA's professional engineer, signed a transmittal letter on September 7, 2000; arranged for delivery of the application to DEP's Northeast District office in Jacksonville, Florida; and thought it was delivered and left there after-hours on September 7, 2000. But NRSWA did not prove that the renewal application was submitted to DEP before September 8, 2000, when it was filed-stamped. The renewal application was submitted on DEP FORM 62- 701.900(1). The application was signed on the behalf of NRSWA by Darrell O'Neal, its Executive Director. By this signature on the form, O'Neal swore that all statements in the application were true, correct, and complete and agreed on behalf of NRSWA to comply with applicable statutes and DEP rules. The application was also signed, sealed and dated by Frank Darabi, as professional engineer. Darabi's signature certified that all engineering features in the application were "designed/examined by me and found to conform to engineering principals [sic] applicable to such facilities." On September 18, 2000, the ALJ in Case No. 00-3448 entered an Order Granting Motion to Dismiss with Leave to Amend. The ALJ held that the allegations in the Petition for Administrative Hearing failed to demonstrate that the Petitioner "ha[d] sustained, or [wa]s in the immediate danger of sustaining some direct injury as a result of the proposed agency action." The ALJ granted Petitioner leave to amend as to standing. On September 26, 2000, Petitioner filed an Amended Petition for Administrative Hearing in Case No. 00-3448, which included new allegations in an attempt to address the question of Petitioner's standing. On October 5, 2000, NRSWA filed a Motion to Dismiss the Amended Petition for Administrative Hearing. NRSWA asserted that the Amended Petition for Administrative Hearing failed to sufficiently allege Petitioner's standing. On October 6, 2000, DEP issued a Request for Additional Information (RAI) as to the renewal application. The RAI did not ask for any information concerning the pending bioreactor modification application. On October 20, 2000, the ALJ in Case No. 00-3448 granted NRSWA's motion to dismiss Petitioner's amended petition in that case, finding that the amended petition "ha[d] set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings." On November 3, 2000, NRSWA submitted its response to DEP's RAI, which included the statement: Please note the permit modification application for the bioreactor construction and operation, DEP File Number 0013500-004-SC, is currently under review by Department. It is understood that the previously submitted bioreactor information is to be incorporated in the renewed permit. This statement was included after Darabi asked DEP and was told that it would be appropriate to include information about the pending bioreactor modification application in the response to RAI although not asked for in the RAI. NRSWA's response to RAI was signed by Darabi, with a copy to O'Neal. Darabi's signature did not make representations or certifications like those provided for in DEP FORM 62- 701.900(1). However, Darabi had been NRSWA's professional engineer since its inception, had signed numerous application submissions on behalf of NRSWA over the years, and clearly had authorization to submit the response to RAI. DEP entered its Final Order dismissing Case No. 00-3448 on December 4, 2000. On December 12, 2000, DEP issued Permit Number 001-3500004-SC to NRSWA for the bioreactor modification. This permit provided in pertinent part: This modification shall remain in effect as long as the underlying permit, SC63-271982, is in effect. The underlying permit will remain in effect until final agency action is taken on the renewal application of that permit . . . . Petitioner did not appeal the Final Order in Case No. 00-3448. Following review of the additional information submitted by NRSWA on its renewal application, DEP deemed the permit application complete as of November 3, 2000. Additional information was submitted in January 2001, including a request submitted on January 11 that the bioreactor modification part of the renewal permit address specific conditions omitted from the modification permit issued on December 12, 2000. On February 15, 2001, DEP gave notice of intent to renew NRSWA's permit for continued operation of its landfill. DEP's draft permit incorporated specific conditions addressing the construction and operation of the bioreactor system, as well as all other permitted landfill activities. The evidence is clear that, since November 3, 2000, NRSWA consistently has taken the position that the bioreactor system modification was included in its renewal application. Alleged Improper Purpose The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of NRSWA's permit renewal applications. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why NRSWA's permit renewal application, with bioreactor landfill system in cells 1 and 2, should not be granted. Petitioner failed in his attempts in large part because several issues he wanted to litigate were outside the scope of a permit renewal application and because he had no expert testimony on issues he was allowed to raise. At that point, Petitioner announced he was dropping all issues but one. The sole remaining issue after Petitioner's announcement might be viewed as a procedural technicality bordering on being frivolous. But it arose out of the complex (as DEP described it, "muddled") procedural history. Under these circumstances, it is not found that Petitioner's continued litigation of his sole remaining issue was frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) dismissing the verified Petition for Administrative Hearing; (2) granting NRSWA's application to renew Permit No. SC63-271982, as set forth in the draft permit--i.e., for merger and continued operation of all existing landfill operations, including NRSWA's Class III waste disposal permit, its permit for a waste tire collection center, and its permit for the bioreactor landfill system on cells 1 and 2; and (3) denying NRSWA's request for attorney fees and costs from Petitioner under Section 120.595(1) and Section 403.312(2)(f). Jurisdiction is reserved to enter a final order on NRSWA's Motion for Attorney Fees and Costs under Section 120.569(2)(e), to the extent that it has been preserved. DONE AND ENTERED this 7th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Paul Still Route 4 Box 1297H Starke, Florida 32091 Jonathan F. Wershow, Esquire Post Office Box 1260 Gainesville, Florida 32602 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue The issues are whether the Department of Environmental Protection's (Department's) proposed agency action to issue a coastal construction control line (CCCL) permit to Respondents, Daniel G. and Doris L. Wentz (Wentzes or applicants), affects the substantial interests of Petitioner, James Hasselback, and if so, whether he timely filed his request for a hearing.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background This case is the latest chapter in a long-running dispute between adjacent property owners in Gulf County. In 1984, the Cape Haven Townhomes (Cape Haven), consisting of five two-story units on pilings, were constructed at 263 Haven Road on Cape San Blas just west of County Road 30E. Petitioner purchased his unit in 1985 and has owned it continuously since that time. The remaining units were purchased by several other individuals, including Barnett, Hosford, Steve Brady (Brady), and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman). Ownership in the Barnett unit is shared with two other persons, John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are, then, seven individuals having an ownership interest in the five units. Although the complex faced the Gulf of Mexico to the west, another lot, which at one time was approximately 350 feet deep and 65 feet wide, lay between Cape Haven and the Gulf of Mexico. Between 1985 and 1999, the lot lying between the Gulf of Mexico and Cape Haven remained vacant. In December 1999, the Wentzes purchased the lot, which is located at 193 Haven Lane. The lot is divided into Parcels A and B, which appear to be of equal size with both facing the Gulf of Mexico. See Wentz Exhibit 1. It can be inferred that they purchased the lot with the intention of constructing a single-family dwelling on the property. In February 2000, the Wentzes filed an application with the Department for a CCCL permit authorizing the construction of a home on Parcel B. On July 9, 2002, the Department issued proposed agency action approving the application and issuing Permit No. GU-305. A petition was filed by Barnett and Hanlon challenging this action, the matter was referred to DOAH and assigned Case No. 02-3252, an evidentiary hearing was conducted, and a Final Order was entered denying the application. Barnett, et al. v. Wentz, et al., DOAH Case No. 02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted, 2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding, Barnett and Hanlon were represented by the law firm then known as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel, Fernandez, Cole & Bryant, P.A. (the law firm). In September 2000, the Wentzes also filed an application for a field permit to enhance the dune system on their property. After the Department proposed to grant Field Permit 014292 authorizing the dune enhancement project, a petition challenging that action was filed by the law firm on behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and Hasselback. The matter was referred to DOAH and was assigned Case No. 00-4460. Before a final hearing was conducted, however, Petitioners filed a notice of voluntary dismissal. In 2004, the Wentzes filed another application with the Department for a CCCL permit, this time on Parcel A. On September 8, 2004, the Department issued its notice of intent to issue Permit GU-409. Notice of this action was not published. Therefore, actual or constructive notice was required in order to afford third parties, including Mr. Hasselback, a point of entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice means "either receipt of written notice or publication of the notice in a newspaper of general circulation in the county . . . in which the activity is to take place"). Besides the law firm, Barnett, Dohrman, and several others not relevant here received personal written notice of the Department's action. Thereafter, acting pro se Barnett timely requested at least six extensions of time to file a petition challenging the proposed agency action. The last extension lapsed on February 14, 2006, and neither Barnett nor any other Cape Haven owner requested a hearing by that date. In August 2005, the Wentzes filed an inverse condemnation suit against the Department. See Wentz v. State, Department of Environmental Protection, Case No. 05-270CA (14th Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued a Final Order stating that it intended to revoke Permit GU-409 on the grounds the property was not platted prior to October 1, 1985, and shoreline changes had occurred after the proposed agency action had been issued. See DOAH Case No. 06-2381. Presumably, the latter reason was based on severe erosion of the shoreline due to several storms or hurricanes that struck the Florida Panhandle. According to testimony at hearing, due to erosion caused by storm events, the lot has receded from its original 350 feet in depth to around 175 feet at the present time. (In Case No. 02-2352, the administrative law judge noted that between 1993 and October 2002, around 47 percent of the property's total depth, or 170 feet, had eroded. Barnett at *11.) This in turn requires that any structure built on the Wentzes' lot be much closer to Petitioner's unit. One witness estimated that the Wentzes' septic tank, drain fields, and driveway would be no more than 30 feet from the front of the complex, while the pilings supporting the structure would be no more than 40 feet from the complex. The Wentzes challenged the proposed revocation of Permit GU-409 and simultaneously filed a rule challenge. See DOAH Case No. 06-2309RX. In August 2007, the Wentzes and Department reached a global settlement on all pending matters, and in return for the Wentzes' dismissing all pending court and administrative actions and executing a conservation easement in favor of the State as to one of the two parcels, the Department agreed to issue a Notice to Proceed (NTP) with the construction on Parcel A and to extend the expiration date on Permit GU-409 from September 8, 2007, to May 8, 2010. Except for the extension of the expiration date, no other changes to Permit GU- 409 were made. An extension was necessary because the permit would otherwise expire within a month, and no activity on the property had occurred due to Barnett's six requests for extension of time to file a petition and the passage of time required to resolve the revocation case and reach a global settlement. After the NTP was issued, concrete pilings were placed on the site and still remain as of this date. According to recent photographs, no other construction has occurred pending the outcome of this case. See Petitioner's Exhibit 4. In response to the Department's action, on October 10, 2007, the law firm filed a Petition on behalf of Barnett and Hosford in which they claimed that they first learned of the Department's latest action by reading a real estate listing in early October 2007, which advertised the Wentzes' property for sale, including a three-bedroom, three-bath home then under construction. On October 19, 2007, the Wentzes filed with the Department a Motion to Dismiss the request for a hearing as being untimely. Barnett and Hosford were later dismissed from the case on the grounds a new point of entry was not required by the latest Department action, and they had waived their right to contest the issuance of Permit GU-409 by (a) Hosford's failing to timely file a petition after notice of the agency action was issued on September 8, 2004, and (b) Barnett's failing to file a petition after the last extension of time to do so expired in February 2006. See Order Granting Motion to Dismiss, Jan. 25, 2008. On or about October 23, 2007, or just after the Motion to Dismiss had been filed by the Wentzes, Petitioner was contacted first by Hosford and then Barnett, who asked that he participate in the case to challenge Permit GU-409 since they believed that "apparently . . . [he was] not noticed by DEP on GU-409", and Petitioner was "the key for all of us maintaining our rights." See Wentz Exhibit 23. Petitioner agreed to file a petition since he thought it was in the best interests of all of the unit owners and did so within a matter of "two or three days." The Petition was prepared by the law firm and was filed with the Department on October 26, 2007. Substantial Interests At hearing, and in pre-hearing discovery, Petitioner testified that his substantial interests would be affected by the proposed agency action in three ways: (a) it would adversely affect his view of the Gulf of Mexico; (b) it would negatively impact the value of his townhome; and (c) he feared that wind or waterborne missiles from the structure during a storm event would cause damage to his townhome, which lies directly behind and to the east of the proposed construction site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant must show that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm").1 The latter concern is the subject of the Wentzes' Motion in Limine briefly discussed in the Background portion of this Recommended Order. In addition to his testimony, on page 2 of the parties' Stipulation, Petitioner identifies the following concerns with the proposed agency action: The project does not satisfy the requirements or purpose of the statutes and rules limiting coastal construction; will diminish his observation and enjoyment of flora and fauna including sea turtles; will damage his property[;] and will have a significant adverse impact to marine turtles and the coastal system. Finally, in paragraph 21 of the Petition, the following allegation is made regarding the substantial interests of Petitioner: Should the permit be permitted, the Petitioner will no longer be able to enjoy the flora and fauna of Cape San Blas, the proposed project will jeopardize the Petitioner's continued enjoyment of his property at this location as described above, and the Petitioner's rights will be swept aside. The Wentzes argue that in demonstrating how his substantial interests are affected, Petitioner is limited to the reasons he gave during his testimony, both before and during the final hearing, irrespective of any other issues identified in his Petition or the parties' Stipulation. On the other hand, through counsel, Petitioner argues that he is a lay person, he cannot be expected to give opinion testimony in support of technical allegations in the pleadings and Stipulation, and that expert testimony may be used to establish how his substantial interests may be affected. A common thread in the testimony of Mr. Hasselback and the Stipulation is a concern that the proposed activity "will damage his property." See Stip., p. 2. Therefore, assuming arguendo that the Wentzes' argument regarding the standing issues that may be raised is correct, Petitioner is still entitled to offer proof that his property may be damaged by the proposed activity. As to the other two concerns stated in Petitioner's testimony, neither loss of view nor loss of economic value is a relevant consideration. See, e.g., Schoonover Children's Trust v. Village at Blue Mountain Beach, LLC, et al., Case No. 01- 0765, Recommended Order of Dismissal, April 20, 2001 (dismissing challenge to CCCL permit based upon allegations of loss of view and economic injury because "neither . . . is a protected interest in a proceeding under Section 161.053, Florida Statutes"). See also Young, et al. v. Department of Environmental Protection, et al., Case No. 04-3426, 2005 Fla. ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla. ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the contention that the issuance of a permit may cause wind or waterborne missiles to strike or cause damage to his property need be decided to resolve the standing issue. Rule 62B-33.005(4)(f) requires that an applicant for a CCCL permit demonstrate that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm." Mr. Hasselback is concerned that if a dwelling is constructed in front of his unit as proposed and no more than 40 feet away, during a severe storm event parts of that structure may be carried by wind or water into his unit. Although any dwelling constructed on the coastline must be designed to withstand the impact of a 100-year storm, a coastal engineer established that even if the home is built to those standards, "substantial structural elements" (such as sections of roofing material, siding, stairways, and the like) may still be carried by water, or blown by the wind, into Cape Haven, which lies directly behind, and less than 40 feet from, the proposed structure. The expert also pointed out that both the Department and Federal Emergency Management Agency require that all frangible structural components (those that tend to break up into fragments) below the first living floor remain unattached to the home. In this respect, the evidence supports a finding that Mr. Hasselback could reasonably expect to be adversely impacted in this manner should a permit be approved.2 Petitioner's expert also established that the existence of the pilings on the Wentz structure could accelerate beach erosion and cause damage to the beach dune system on Petitioner's property. Because of the extremely high rate of erosion on Cape San Blas, he opined that such impact could occur soon after the Wentz structure was completed. In this additional respect, Petitioner's substantial interests could reasonably be expected to be affected by the issuance of a permit. Was the Petition Timely Filed? Mr. Hasselback is the Mary Ball Washington Eminent Scholar in the College of Business, University of West Florida, in Pensacola, but maintains a residence in Tallahassee. As such, he must commute between the two cities each week during the academic year. He also travels much of the other time. Because of his schedule, he stated that he visits his unit only "an average of once a year." The record shows that he occasionally communicates by email or telephone with other unit owners, particularly Barnett, who is considered the "leader" of the unit owners in opposing any development on the Wentz property. It is fair to infer that since the property was purchased by the Wentzes in late 1999, most, if not all, of the information derived by Petitioner (and other unit owners) about the Wentz property, including any proposed activities they have undertaken, has come from Barnett, rather than other sources. Throughout this case, Mr. Hasselback has consistently maintained that he was unaware that the Department proposed to issue Permit GU-409 until he spoke by telephone with Barnett and Hosford in late October 2007 after the Wentzes had filed a Motion to Dismiss the Barnett/Hosford Petition. After the Department denied the application for Permit GU-305 in August 2003, he says he assumed that the issue was closed and that no further development would occur on the Wentzes' property. There is no direct evidence to dispute these assertions. Notwithstanding Mr. Hasselback's testimony, the Wentzes and Department contend that the law firm has represented the unit owners as a group since 2000, when the first two applications were filed, and that this relationship was still in effect in September 2004 when the law firm received notice of the Department's proposed agency action regarding Permit GU-409. They go on to contend that an agency relationship between the unit owners and the law firm existed, that it is presumed to continue in the absence of anything to show its revocation or termination, that the law firm's receipt of separate written notice concerning Permit GU-409 constituted constructive notice on Petitioner, and a petition should have been filed within 21 days after receipt of notice. Conversely, Petitioner contends that the attorney-client relationship between him and the law firm ended when the litigation in Case No. 02-2352 was concluded in August 2003, that the law firm did not represent him in September 2004, and that any notice to the law firm regarding the issuance of Permit GU-409 cannot be imputed to him. For the following reasons, on two different bases, including one not addressed by the parties, it is found that Petitioner received constructive notice of the proposed issuance of Permit GU-409 on or about September 15, 2004. To resolve the contentions of the parties, a factual review of the relationship between the law firm and Cape Haven owners is necessary. As discussed in greater detail below, this task is a difficult one because of the large number of unit owners (seven), some of whom participated as parties in one case, but not the others, and who are referred to by the law firm in correspondence or other papers generically as "a group of property owners, "adjacent property owners," or "other Cape Haven Townhome owners," and in other papers by their specific names. Although the law firm normally required that its clients execute a letter of engagement before agreeing to represent them, this policy was not strictly followed, and some unit owners who had not signed a letter of engagement were named as parties in a Wentz proceeding, while others who had signed a letter were not. Finally, the record supports a finding that throughout the nine-year controversy between the parties, Barnett has been the individual who acted as liason between the other unit owners and the law firm. After the Wentzes filed their application for a CCCL permit in February 2000, on August 4, 2000, Mr. Hasselback and three other unit owners, Dohrman, Barnett, and Hosford, each signed a letter of engagement with the law firm, also known as a New Matter Report (Report), authorizing the firm to represent them in the Wentz matter. See Wentz Exhibit 13. Petitioner says he "most likely" learned about the proposed issuance of Permit GU-305 through Barnett, who urged all of the unit owners "to come together" in opposing the permit. Petitioner agrees that all of the unit owners acted as a group "to fight the field permit and the GU-305." Even though Hasselback, Dohrman, and Hosford each signed a Report, the Reports identified only Barnett, Hanlon, and Beranek, who share ownership in unit 5, as the clients in the matter; Barnett was listed as the contact person. However, there is no evidence that Hanlon and Beranek ever signed a Report. Presumably, as co-owners with Barnett of unit 5, they had informally agreed with Barnett to be named as clients and to reimburse him for their pro rata share of the costs. The subject of the Reports was the "potential challenge of coastal control permit" and contained no information as to when the firm's services would cease. On September 25, 2000, the Department proposed to issue a field permit to the Wentzes for dune enhancement. See Case No. 00-4460. On October 11, 2000, the law firm filed a petition challenging the issuance of that permit. The petition was filed on behalf of all seven unit owners, even though three had never signed a Report. Although he probably discussed the substance of the petition before it was filed, Mr. Hasselback admits that he did not know the difference between a field permit and a CCCL permit and said he signed his Report so that the law firm could take "action against [the Wentzes] being able to build on [their] property." On October 20, 2000, the law firm also sent a letter to Department counsel requesting Department counsel to remind the Wentzes that a petition had been filed on behalf of its clients, that Permit 014292 was only proposed action, and that the Wentzes should not proceed with any work on the site. See Wentz Exhibit 3. The letter reflects that all of the Cape Haven owners, including Petitioner, were copied with that correspondence. The law firm's representation of the unit owners as a group at that time was confirmed by a letter sent to the Department on October 1, 2001, stating that the firm represented all of the Cape Haven owners, including Barnett, Dohrman, both Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in their challenge to the Permit GU-305 application. It also requested notice of any decisions regarding the permit and a point of entry. See Wentz Exhibit 17. A copy of the letter was sent to all unit owners, including Petitioner. When the Department issued its formal proposed agency action regarding Permit GU-305 on July 9, 2002, it sent separate written notice to a member of the law firm on the same date. See Wentz Composite Exhibit 8. A petition was then timely filed by the law firm challenging that action. Notwithstanding the firm's letter of October 1, 2001, which indicated that all of the unit owners were opposing the issuance of a CCCL permit, only Barnett and Hanlon (who had not signed a Report) were identified as petitioners in the GU-305 case. Petitioner acknowledged, however, that he and the owners of three other units, but not Brady, agreed to share in the expenses of that case even though they were not named as parties. In all, he paid more than $35,000.00 in legal fees.3 (Brady, who owns unit 3, did not sign a Report, and according to Petitioner, he would not agree to share legal expenses in opposing the Wentzes' applications; even so, his name was on the petition filed in Case No. 00-4460.) Before Case No. 02-3252 was concluded, by letter dated January 15, 2003, the law firm, through a former member, Patricia A. Renovitch, Esquire, made the following request to Michael W. Sole, then Bureau Chief of the Department's Bureau of Beaches and Wetland Resources: Please consider this a request on behalf of adjacent property owners for notices about points of entry prior to the issuance of any permits to, and notices of any applications filed by, Doris and/or Daniel Wentz regarding the coastal lots they own on Cape San Blas that are described in File Numbers GU-375 and GU-305 (DOAH Case No. 02-3252 and OGC Case No. 02-1127). This would include notices of any applications for coastal construction control line permits or "dune enhancement" permits for these lots. (Emphasis added) In this instance, the law firm identified the unit owners as "adjacent property owners" without any further specificity. It can be inferred, however, that the law firm was still representing the entire group. At hearing, Petitioner acknowledged that because Case No. 02-3252 was not yet concluded, the law firm was still representing him when the letter was sent. He also agreed that the letter authorized the law firm to receive notices of "any applications" on behalf of him and the other unit owners the Wentzes might file in the future. Petitioner says his relationship with the law firm ended on August 4, 2003, when the Department issued a Final Order denying the application for Permit GU-305. He acknowledges that he never notified the Department or the law firm that the relationship ended on that day, and he did not instruct the law firm to revoke his prior authorization to receive notices of "any applications" that might be filed by the Wentzes in the future. Lacking any contrary information, the law firm did not advise the Department that it no longer was his agent for purposes of receiving notices. In response to Ms. Renovitch's letter sent to the Department in January 2003, on June 4, 2004, the Department sent a letter to the law firm (and Barnett individually) advising that the Wentzes had just filed another application for a CCCL permit, that it was being assigned File Number GU-409, and that any comments should be filed within ten days. See Department Exhibit 4o. In response to the Department's letter, on June 15, 2004, Ms. Renovitch filed a letter with the Department indicating in part as follows: Please consider the following comments made in behalf of our clients, Richard Barnett and other Cape Haven townhome owners of adjacent and/or upland property to the property described in the above styled application. (Emphasis added) The letter went on to state that "Mr. Barnett and other similarly-situated upland/adjacent property owners of Cape Haven townhomes submit their carefully considered objections to the issuance . . . of GU-409." See Department Exhibit 4o. Based on this correspondence, it can be inferred that in June 2004, at least for purposes of receiving "notices of any applications" filed by the Wentzes and submitting comments on behalf of the unit owners, an apparent principal-agent relationship still existed between the "other Cape Haven townhome owners" and the law firm, and that Petitioner was one of the unit owners being represented for those purposes. A copy of the letter was provided to Barnett, who presumably approved its content. On September 13, 2004, or five days after the Department issued its proposed agency action to issue Permit GU- 409, the Department sent separate written notice of this action to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a coastal engineer in Jacksonville, Florida, who testified as a consultant for Petitioner in this case, and several other individuals not relevant here. See Wentz Composite Exhibit 8. The notice was received by Barnett on September 15, 2004, and presumably by the law firm on or about the same date. See Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman, and Olsen were also given separate written notice since they had each filed additional written objections in response to the Department's letter of June 4, 2004.) Although Barnett promptly contacted the law firm after receiving the notice to discuss the case, there is no evidence that the law firm contacted or spoke with any of the other unit owners regarding the proposed agency action. More likely than not, this was because it assumed that, based on the prior conduct of the parties, Barnett was the leader or "contact" person for the group and would convey any pertinent information to the other unit owners. While the law firm had not yet agreed to represent any of the unit owners on the merits of the GU-409 case since new Reports had not yet been sent out, see Finding 32, infra, the law firm was still Petitioner's agent for purposes of receiving notice of "any applications," and its receipt of the Department's notice on or about September 15, 2004, constituted constructive notice on Petitioner. On September 27, 2004, Ms. Renovitch emailed Kenneth Oertel, Esquire, the senior partner in the law firm, regarding the proposed agency action to issue Permit GU-409 and advised him as follows: Rick [Barnett] called a couple of times last week about the GU-409 case. He and John Beranek are in charge of overseeing the case (assuming we take it). They have approved the content of the Petition (per the memo I sent early last week.) I spoke to Rick Barnett several times about the balance (approx. $10K) on the bill in GU-305 (first Wentz CCCL permit). He said it's owed by Tom Dohrman and he will try to get a letter confirming when and how Tom will pay the balance. In the new case, the clients would be Rick, John Beranek, Jim Hasselback, Laurie Hosford, and Tom Dohrman. They will be paying equal shares. We have the NMRs [New Matter Reports] ready to send out, but have not sent them due to the unpaid balance in the first case. Rick wants to meet with DEP counsel Mark Miller and Tony McNeal about the GU-409 case this week . . . . Tony is very busy with hurricane impact emergencies . . . [and] Mark suggested Rick file a request for an extension to file the Petition. (Emphasis added) See Wentz Exhibit 9. Mr. Hasselback is not listed as a recipient of the email and he never spoke with Barnett or Ms. Renovitch about the case. He attributes the mentioning of his name in the email and being named as a party in the proposed petition to an assumption on the part of Barnett that "we may still have a group." However, given the prior conduct of the parties, it is reasonable to infer at a minimum that Barnett had Petitioner's implied authority to instruct the law firm to include his name on the proposed petition and to represent that Petitioner would share in the costs of the action. In response to that email, Mr. Oertel replied by email the same date that "we can't take a case where the client already owes us a substantial sum and has a hard time paying it. It will mean at best we will get paid only 80% of our bill." Id. At the suggestion of Mark Miller (Department counsel), Barnett requested that the Department grant him an extension of time to file a petition in order not to waive the 21-day filing requirement, which expired on October 6, 2004. The first request for an extension of time was filed on September 27, 2004, and stated in part that "I request a two week extension to October 20, 2004, for the homeowners of Cape Haven to consider all issues that could be raised in filing a potential challenge to this permit." (Emphasis added) See Department Exhibit 4n. The "homeowners" are not otherwise identified, although it is fair to infer that they were the five unit owners identified in the proposed petition whose content was approved by Barnett and Beranek. According to Ms. Renovitch's email of September 27, 2004, by requesting an extension of time, this would also "give [Barnett] more time to try to get Tom Dohrman to set up a payment plan." The last request for an extension of time was filed on November 14, 2005, and expired on February 14, 2006. Barnett says that he "lost track of the time and didn't submit [a seventh request] in time, but [he] clearly intended to submit [one]". The end result was that the law firm did not accept the case in September 2004, no petition was filed, and a new Report was not executed by any unit owner. After reading an advertisement regarding the potential sale of the Wentz property in October 2007, Barnett and Hosford engaged the services of the law firm to file a petition challenging the action taken by the Department in August 2007. There is no evidence that they signed a new Report authorizing the law firm to represent them. As noted above, their petition was later dismissed as being untimely. The law firm then filed a petition on behalf of Petitioner, who agrees that it was filed "to maintain the rights" of the group. However, he has not signed a new Report for this case, he has not been billed for any legal fees, he believes that Barnett is paying "some of the cost," but he expects he will probably end up paying a part of the legal fees incurred in this action. Based upon the facts of this case, and the conduct of the parties, the record also supports a finding that a principal-agent relationship existed between Petitioner and Barnett. As noted above, Barnett has always been the leader of the group of unit owners in opposing any development on the Wentz property. He communicated in writing and by telephone with Department personnel on numerous occasions over the years regarding the status of the activities on the property and periodically relayed this information to other unit owners by telephone or emails. Even though the law firm was given notice on behalf of the unit owners, Barnett also requested separate written notice from the Department for any applications filed after the GU-305 case, including the GU-409 permit. Barnett was initially identified by the law firm as the contact person for the group and has regularly met or communicated with the law firm regarding the various permits being challenged. It is fair to infer that the law firm assumed that Barnett had the authority to act on behalf of the other unit owners in coordinating their opposition to any permit challenges. This is evidenced by one of its emails indicating that Barnett was "in charge of overseeing the [GU-409] case" and that he approved the content of the proposed petition in which Mr. Hasselback was named as one of the parties. Although no longer a party in this case, he continues to discuss strategy of the case with counsel and other unit owners, including Petitioner. Finally, since the inception of these disputes, the record supports a finding that the law firm has invoiced Barnett for its legal fees, and Barnett then seeks reimbursement from the other owners, including Petitioner. Therefore, it is reasonable to infer from the evidence that because of his work schedule and travel, and infrequent visits to his townhome, since 2000 Petitioner has, at a minimum, impliedly authorized Barnett to serve as his agent to advise him about any activities by the Wentzes that might potentially impact the value of his townhome. The fact that Barnett did not always timely convey the information, as was the case here, does not negate this relationship. Because notice was received by Petitioner's agent on September 15, 2004, the time for filing a challenge to the issuance of Permit GU-409 expired 21 days after receipt of that written notice, or on October 6, 2004. Assuming that Mr. Hasselback was one of the "homeowners of Cape Haven" referred to in Barnett's first request for an extension of time to file a petition on September 27, 2004, and the subsequent five requests, the time for filing a petition expired no later than February 14, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Petition of James Hasselback as being untimely. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
Findings Of Fact Respondent made a timely request for formal hearing in response to Petitioner's Administrative Complaint. Respondent is Mark Allen Vanderwater. At all times pertinent to these proceedings, Mr. Vanderwater held certified general contractor license number CG-CO15948. His address of record is Coral Springs, Florida. John Andrews Anagnostaras, acting on behalf of Expedia Limited (Expedia), executed an agreement on December 17, 1986 with 2C.D.M., Inc., represented by Mark Allan Vanderwater, the Respondent. Under terms of the agreement ("Expedia- Vanderwater Agreement"), the Respondent's corporation agreed to act as General Contractor and provide certain services to Expedia in connection with the construction of the project known as "Bergin's Beer & Wine Garden" located in the Bayside Marketplace Development in Miami, Florida. This agreement titled the role of Expedia as "Owners Project Representative/Construction Manager." Among services to be provided by Respondent's corporation under the terms of the Expedia-Vanderwater Agreement, were: general construction services consisting of day to day supervision as requested by Expedia; provision of required licensing necessary to obtain construction permits; securing and delivery to Expedia of any required inspection, testing and approval certificates; collection and delivery to Expedia of all written warranties and equipment manuals; provision to Expedia of proof of Respondent's workman's compensation and general liability insurance coverage; and coordination of subcontractors and suppliers and delivery of the completed project to Expedia. Payments to Respondent, under terms of the Expedia-Vanderwater Agreement, were to consist of a $500 payment upon execution of the document, professional fees of $2,500, and $125 per day for daily supervision. As adduced from testimony at the hearing, a grand total of approximately $8,500 in fees was generated by Respondent. He received payments totalling $5,000 and claims he is still owed $3,500 by Expedia. The Expedia-Vanderwater Agreement specifically provided that payments to the various suppliers and subcontractors would be made directly by Expedia, as opposed to Respondent making such payments. While Respondent ordered materials, he made no payments of any consequence to subcontractors. Rather, the customers, Bergin and Sherman, made monetary payments to John Andrews Anagnostaras on behalf of Expedia. Numerous liens totalling at least $30,000 have been filed by various subcontractors due to lack of payment for supplies or services. The Expedia-Vanderwater Agreement further stipulated that Respondent's corporation would conduct all communications with the owners of the project through Expedia. The evidence fails to show that any communication from Respondent to Mr. Bergin or Ms. Sherman, the owners and customers, ever occurred through the conduit of Expedia. For that matter, the proof establishes that neither of the owners was aware of the involvement of Respondent or his corporation in the construction of the project until the closing days of March, 1987. Subsequent to execution of the "Expedia-Vanderwater Agreement," John Andrews Anagnostaras, again acting as representative for Expedia, executed an agreement with customers Kevin Bergin and Arlene Sherman. This agreement ("Expedia-Bergin Agreement") was signed on January 16, 1987, to confirm commencement of work on the Bergin project as of December 20, 1986. The Expedia-Bergin Agreement contemplated total project costs of $130,000 for construction of the commercial beer and wine retail store. The agreement designated Expedia as "Contractor" on the project. While the document reflects the signature of Arlene Sherman in a space provided for a witness, testimony at hearing established Ms. Sherman was also an owner in the project. An agreement with a subcontractor for supply and installation of the electrical network and accessories needed on the Bergin project was signed by John Andrews Anagnostaras on January 8, 1987. He also executed an agreement on January 7, 1987, with another subcontractor for manufacture, supply and installation of millwork on the Bergin project. An application, signed by Respondent and bearing the name and local address of Arlene Sherman as owner, resulted in the issuance of a building permit for construction of interior partitions, millwork, electrical and plumbing services, floor finishing and ceiling suspension work associated with the Bergin project. The permit was issued on January 29, 1987, well after the beginning of the project as documented in the Expedia-Bergin Agreement. Other than the pulling of the building permit and ordering of materials, Respondent's involvement with the project was negligible until the latter part of March, 1987. On March 18, 1987, during the course of a "walk through" inspection of the development where the Bergin project was being constructed, Petitioner's investigator was apprised that certain records of the developer of the Market Place at Bayside, Rouse Corporation, reflected the identity of the contractor on the Bergin project to be John Andrews Anagnostaras. Subsequent investigation revealed that neither John Andrews Anagnostaras or Expedia Limited are, or ever have been, registered or qualified as general contractors by the Florida Construction Licensing Board as required by law of the State of Florida. While the record is not clear regarding the exact date, a short time later a cease and desist agreement was executed by John Andrews Anagnostaras with the Petitioner wherein Mr. Anagnostaras agreed to desist from unlicensed contracting work. At about the time of the exposure of the unlicensed status of Expedia and its representative, Ms. Sherman was informed by Petitioner's investigator that the Bergin project would be shut down because of the contractor's lack of license. This was also the time when she received her first knowledge of the involvement of the Respondent in the Bergin project. Testimony of Kevin Bergin substantiates this evidence. Although he possessed a vague recollection of seeing Respondent in the background in one meeting with John Andrews Anagnostaras, Kevin Bergin learned of the Respondent's involvement in the construction project and the unlicensed situation regarding Expedia on or about April 1, 1987. Ms. Sherman met with Respondent at the construction site to prepare a "punch list" of unfinished items on the Bergin Project around the third week of March, 1987. This list of needs was formalized by Respondent and presented to Ms. Sherman on April 10, 1987. Respondent accomplished a minimal number of the items set forth in the "punch list," but failed to correct many major noted deficiencies such as installation of a brass bar, kitchen cabinets, beveled mirrors, ventilation for an ice machine, or replacement of three quarter inch counter topping for the previously installed one quarter inch topping. Ms. Sherman visited the project construction site an average of four days a week beginning in February, 1987, but has no clear recollection of the Respondent being there until meeting with him to prepare the "punch list." She does recall discussing the delay in millwork with the Respondent, and, while the date of this conversation could not be recalled, the discussion likely took place in the latter part of March, 1987. Respondent testified he appeared on the project construction site approximately 30 of the roughly 90 days of the project's duration. The length of his visits varied from a few minutes to a few hours, according to Respondent. He also testified that he considered himself the general contractor on the project and was without knowledge of the Expedia-Bergin Agreement assigning that role to Expedia. Further, he testified that he figured the owners lived in New York. This testimony of the Respondent is not credited in view of the address of Ms. Sherman on the building permit application and the Respondent's unsuccessful, insistent and contradictory attempts during the hearing to have Ms. Sherman recall several meetings with him during the time of the construction of the project. While Respondent provided a March 9, 1987, notice to the Rouse Corporation as the developer of the Marketplace at Bayside that Respondent was providing general contracting, site supervision and coordination services in connection with the Bergin project, the evidence fails to show provision of similar notice to owners Sherman and Bergin. Respondent was aware that Expedia and John Andrews Anagnostaras were not licensed as general contractors under Florida law. Respondent failed to qualify either Mr. Anagnostaras or Expedia as an affiliate with Respondent's corporation as required by section 488.119, Florida Statutes. Respondent aided a contractor (John Andrews Anagnostaras d/b/a Expedia) not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit, through use of Respondent's license, for a construction job known as "Bergin's Beer and Wine Garden." Respondent failed to properly supervise the finances on such construction job. By his own admission and the terms of the Expedia-Vanderwater Agreement, he relinquished to the unlicensed contractor all responsibility for finances connected with subcontractors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and imposing a penalty of $1500 and probation for a period of one year upon such terms and conditions as may be set by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5331 The following constitutes my specific rulings in accordance with section 120.59 (2), Florida Statutes, on all proposed findings of fact submitted by the parties: Proposed findings submitted by Petitioner Proposed findings submitted by the Petitioner consisted of 12 paragraphs, paragraphs 5-12 being unnumbered. Those paragraphs have been numbered and all proposed findings are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. Included in finding number 10. Included in findings number 3, 4, 10, 12, 14 and 15. Included in finding number 14. Included in findings number 3, 4, 6, 14, IS and 22. The first sentence is included in finding number 16. Remainder rejected as unnecessary. Included in findings 16, 17 and 18. Included in findings 7 and 11. Included in finding number 7. Included in findings 18 and 19. Proposed findings submitted by Respondent While unrepresented at hearing, Respondent's proposed findings were filed on his behalf by Edmond L. Sugar, Esquire. Although untimely filed with the Division of Administrative Hearings (6 days after the required deadline determined at hearing) and unnumbered, those 21 paragraphs have been numbered 1- 21 and are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. As to co-ownership, this proposal is included In finding number 10. The remainder is rejected as unnecessary. Rejected as contrary to the weight of the evidence. Mr. Anagnostaras held himself out to the owners as an independent contractor. Included in findings numbered 3, 4 and 6. Rejected as not supported by the evidence, see Petitioner's exhibit number 5. Rejected on the basis of credibility. Included in finding number 19. Included in finding number 12. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary. Included only as to signing of cease and desist agreement in finding number 14. Rejected as to remainder of proposal as not supported by the evidence. See Petitioner Exhibit 3. Included in finding number 17 as to date documentation of the punch list was submitted to Ms. Sherman. Remainder of proposal rejected as not supported by the evidence. Rejected, not supported by the evidence. Rejected as unnecessary. Rejected as unnecessary and not supported by the evidence. Rejected as not supported by the evidence. Rejected as not supported by the evidence. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark Allen Vanderwater 3244 Coral Ridge Drive Coral Springs, Florida 33065 Edmond L. Sugar, Esquire HUNTER & HUNTER, P.A. 1930 Tyler Street Hollywood, Florida 33020 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Petitioner purchased a five-acre tract of land in Section 11, Township 28 South, Range 17 East, in Hillsborough County, Florida, to use as a dump site for tree trimmings generated by its tree service business. After being advised by the Hillsborough County Environmental Protection Agency (HCEPA) that dumping on this property was illegal and a fire hazard, Petitioner applied for and obtained a permit to burn some of the trimmings that had been dumped on the property. The permit was issued to burn in the northern part of the property and burning logs were observed in the southern part of the property without an adequate firebreak. This permit was later rescinded. At the time Petitioner acquired the property it was enclosed with a barbed-wire fence with access only via an 18-foot-wide road. Brush fires in the vicinity of the property led the fire department to cut the fence so their equipment could be moved through the area when necessary. Frequent inspection by HCEPA led to citations to Petitioner for maintaining a fire hazard (no adequate fire-break around the perimeter of the property), for unauthorized dumping on the property, inadequate security, and for operating a landfill without a permit. An order to cease dumping on this site was issued by HCEPA. Petitioner sought the assistance of the fire department in constructing a firebreak around the property and on two occasions stretched a chain and later a cable across the road to bar access to unauthorized persons. Trespassers tore down the chain and cable and dumped household trash on the property. Petitioner engaged the services of an engineer to prepare its application to DER for a permit to operate a landfill. When advised that the application was incomplete, that a bond was needed, that the property was not zoned properly, and that the security was inadequate, Petitioner applied to Hillsborough County for a zoning change and contacted an insurance company about the required bond and was assured a bond would be issued when requested. Petitioner's application for a zoning change never reached the agenda of the Hillsborough County Commission and Petitioner never presented documentary evidence that the required bond would be issued upon request. Petitioner presented no evidence that anything has been done to improve the security of the property or to keep unauthorized persons out.
