The Issue The issue in the case is whether the Petitioner's request for payment from the Construction Industries Recovery Fund meets the requirements of law and should be approved.
Findings Of Fact On or about March 20, 1995, Petitioner entered into a contract with Kenneth Boaz (Boaz) doing business as Revival Remodelers. Boaz was licensed as a Certified Residential Contractor, Florida license number CR C035360. The contract was for the remodeling of Petitioner's home. The work appears to have been either uncompleted by Boaz or not completed in accordance with Petitioner's desires. The total amount of the contract, including change orders, was for $53,370.00. Petitioner paid $41,755.00 to Boaz, leaving an unpaid amount of $11,615.00. Petitioner sued Boaz (County Court, Pinellas County, Florida, Civil Division, Case Nos. 96-4335-CO and 96-4343-CO) and received a Final Judgment dated August 26, 1996, against Boaz in the amount of $5,796.00. Petitioner appears to have initiated an attempt to collect the judgment. By transmittal letter dated December 1, 1997, Petitioner received a check from an attorney in the amount of $1,501.77. The letter indicates that the forwarded amount was based on payment by Boaz of $1,877.21 minus a 20 percent commission of $375.44. The letter also indicates a "current balance of account" as $6,126.20. Boaz appealed the County Court decision to the Circuit Court (Sixth Circuit, Appeal No. 96-7707-CI-88B). By Order dated June 29, 1998, the Circuit Court affirmed the determination of liability, but vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages. On remand, the County Court entered another Final Judgment awarding damages, dated October 28, 1998, and the case was again appealed to the Circuit Court (Sixth Circuit, Appeal No. 98-8369-CI-88A). By Order dated June 29, 2000, the Circuit Court again vacated the amount of damages and remanded the case to the trial court for a new trial to determine damages in accordance with directions provided in the Order. At some point during the litigation, Boaz filed for bankruptcy. The United States Bankruptcy Court for the Middle District of Florida, Tampa Division, in Case No. 01-20049-8B7, lifted the automatic bankruptcy stay applicable to Boaz, and by Stipulation for Entry of Final Judgment Liquidating Claims of Plaintiffs executed in April 2003, Petitioner and Boaz reached an agreement that Petitioner's claim was in the amount of $15,000. By Order Determining Claim of the Plaintiffs dated April 25, 2003, the County Court accepted the stipulated amount of $15,000 Petitioner filed a claim form seeking reimbursement from the Construction Industry Recovery Fund. The claim form has a signature purporting to be that of Petitioner. The form contains a receipt date of February 17, 1998. By Order dated August 15, 2003, Petitioner's claim was denied by the Construction Industry Recovery Fund Committee and the Construction Industry Licensing Board on the grounds that Petitioner had failed to present a Final Judgment as to the damages and that Petitioner failed to state a claim eligible for compensation from the fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying the claim for reimbursement filed by Petitioner. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 18th day of November, 2004. COPIES FURNISHED: Adrienne C. Rodgers, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Karen W. Scragg 9085 Leisure Lane, North Largo, Florida 33773-4707 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Section 321.051, Florida Statutes authorizes the creation of a system for utilizing qualified wrecker operators to remove wrecked, disabled, or abandoned vehicles. The Department of Highway Safety and Motor Vehicles has created a rotation system in which wrecker operators within designated zones are called on a rotating basis to respond to Florida Highway Patrol (FHP) calls. This rule challenge attacks the "place of business" rule as promulgated in Rule 15B-9.003(2), Florida Administrative Code and the non-rule policy interpreting the "place of business" requirement of the duly promulgated rule, on the basis that they are invalid exercises of delegated legislative authority and are arbitrary, capricious, and violative of constitutional equal protection with respect to these Petitioners, Murphy's and Lyons. With regard to the non- rule policy, it is also attacked because it has not been adopted pursuant to Section 120.54, Florida Statutes. BACKGROUND AND PROCEDURE The parties stipulated that there would be a unified record; that is, all evidence and testimony would be applicable to the Administrative Complaint proceeding and to the rule challenge proceeding. Oral testimony was received from Lt. Col. Carmody, FHP; Lt. Wessels, FHP; Howard Kauff, Harold Murphy, and Donald Lyons. DHSMV's Exhibits 2-9 were admitted. DHSMV withdrew its proposed Exhibit 1. Murphy's and Lyons' Exhibits 1-4 were admitted in evidence. A transcript of proceedings was provided and the parties have submitted proposed findings of fact and conclusions of law, the proposed findings of fact of which have been ruled upon in the appendix hereto pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact The parties do not dispute that DHSMV's grant of authority stems from Section 321.051, Florida Statutes (1987) which in its entirety provides as follows: 321.051 A wrecker operator system for removal of wrecked, disabled, or abandoned vehicles.-- The Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehi- cles is authorized to establish within areas designated by the Patrol a system utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from an accident scene or for removal of abandoned vehicles, in the event that the owner or operator is incapacitated or unavailable or leaves the procurement of wrecker service to the officer at the scene. All reputable wrecker operators shall be eligible for use in the system provided their equipment and dri- vers meet recognized safety qualifications and mechanical standards set by rules of the Division of Florida Highway Patrol for the size of vehicle it is designed to handle. Duly promulgated Rule 15B-9.003(2), Florida Administrative Code, which has been challenged in this proceeding, provide: To be eligible for approval to tow in a particular zone, the wrecker operator's place of business must be located in that zone, except that if there are no qualified opera- tors in a particular zone, the Division Director or his designee may designate qualified out of zone wrecker operators to be called in that zone. Some other subparagraphs of Rule 15B-9.003 which were duly promulgated and which have not been challenged in this proceeding are: ... Wrecker operators shall have one day and one night telephone number ... Wrecker operators shall be on call twenty-four hours a day, seven days a week. Out-of-zone wrecker requests are permitted in the event of an emergency or the absence of a wrecker of proper classification within the accident or removal zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Sections 321.051 and 321.05(1), Florida Statutes. Duly promulgated and also unchallenged Rule 15B-9.004, Florida Administrative Code provides in pertinent part: (1) The wrecker operator shall respond to all requests for service made through the Florida Highway Patrol duty officer within a reasonable time under the existing conditions and circumstances. If response cannot be made within a reasonable time, the wrecker operator shall notify the Florida Highway Patrol duty officer representative of the estimated time of delay and reasons therefore and the duty officer, if he determines that the delay is unreasonable, may cancel the request for service and use the services of another participating wrecker operator. * * * (4) When a vehicle is released at the scene by the investigating trooper or representative of the division, the wrecker operator shall tow to any location the owner requests within the limits of the zone. The "specific authority" listed in the Florida Administrative Code for this rule is Section 321.051, Florida Statutes. The "law implemented" is Section 321.051 and 321.05(1), Florida Statutes. The non-rule policy complained of has been reduced to writing by the Florida Highway Patrol (FHP) in the Administrative Complaints against these Petitioners, and interprets the term "place of business" as provided by challenged Rule 15B-9.003(2), Florida Administrative Code to mean: A business establishment which meets the following criteria: There must be a sign on the building that identifies it to the general public as a wrecker establishment; There must be office space; They must have personnel on duty at least from 9:00 a.m. to 4:00 p.m., Monday- Friday. There must be a phone at the place of business; Tow trucks must be stationed at the place of business; The tow trucks must have the zone address and phone numbers on them. Petitioners are both engaged in the business of removing wrecked, disabled, stolen or abandoned motor vehicles on Florida highways. Pursuant to Section 321.051, Florida Statutes, Petitioners are eligible for, and participate in, the system established by the DHSMV for utilizing qualified, reputable wrecker operators for removal of wrecked or disabled vehicles from accident scenes or the removal of abandoned vehicles when the owner or operator is incapacitated, unavailable, or leaves the procurement of wrecker service to the officer at the scene (hereafter referred to as "FHP wrecker rotation system"). Petitioners are each charged in an Administrative Complaint indicating that the Respondent intends to remove Petitioners from the FHP wrecker rotation system for alleged failure, among other offenses, to comply with the "place of business" requirement of Rule 15B-9.003(2), Florida Administrative Code, and the unpromulgated "policy" interpreting the term, "place of business" as used in that rule. Petitioners received such notice by hand delivery of the respective Administrative Complaints dated July 22, 1987, bearing case numbers 87-02-FHP and 87-04-FHP now, DOAH Case Nos. 87-3962 and 87-4011, respectively. Those Administrative Complaints are the subject of the Section 120.57(1), Florida Statutes hearing consolidated with this rule challenge. The FHP wrecker rotation system includes designated zones and qualified wrecker operators within those zones. When a wrecker is needed to respond to an accident or to a motorist, FHP calls the wrecker at the top of the list and then rotates this wrecker down to the bottom of the list. By rotating each wrecker on the rotation list following dispatch by FHP, each participating wrecker service is afforded an equal opportunity to service a call. See unchallenged Rule 15B-9.003(3), Florida Administrative Code. Presently, FHP maintains more than two hundred zones statewide. The purpose of the zone system is to provide adequate service levels to the motoring public. The wrecker's response time to a accident scene or to a motorist in need is a primary consideration of FHP. Actual designation of a zone's boundaries is left up to each respective local FHP troop commander, subject to Division Review. See unchallenged Rule 15B-9.003(1), Florida Administrative Code. Designations are within county borders and do not overlap county borders. FHP has designated the size of a zone according to the types of roadways, the number of businesses, and also the weather conditions to anticipate response times within the zones. In Palm Beach County, FHP designated six zones; twenty-two wrecker businesses have qualified to participate as rotation wreckers. These wrecker companies vary according to their size and operation; qualified wrecker operators include companies with as few as one or two wreckers to as many as thirty trucks. Murphy's Towing, Lyons' Auto Body, and Kauff's Towing are among those currently operating in Palm Beach County in one or more zones of the FHP wrecker rotation system. Petitioner Murphy's Towing has participated in the wrecker FHP rotation system for eight years. Murphy's Towing maintains approximately thirty trucks and operates in four zones in Palm Beach County. It maintains storage areas in each zone. As a result of its fleet of wreckers, Murphy's is able to use a roving patrol operation. When a call is received by Murphy's Towing from FHP, a central dispatcher operating 24 hours per day assigns a Murphy's truck which is patrolling in an assigned zone to respond to the call. In individual instances, this system may actually cut or increase response time within zones from what it might be if a truck were dispatched each time from a stationary place of business within the zone. Presently, wrecker services in Palm Beach County will dispatch the closest vehicle, regardless of the address of the wrecker truck or the location of the wrecker, even across zone lines. Petitioner Lyons' Auto Body, Inc., has participated in the FHP wrecker rotation system for twenty years. Lyons' Auto Body, Inc. maintains seventeen trucks and operates in three zones in Palm Beach County. Lyons' Auto Body, Inc. also uses a central dispatch operation similar to that employed by Murphy's Towing. Until FHP promulgated rules which took effect January 22, 1986, including the challenged Rule 15B-9.003(2), Florida Administrative Code, the general operation of the wrecker rotation system was governed by written guidelines and policies established by the local troop commanders, but these written guidelines apparently never embraced the term "place of business" nor defined it. (TR-67-69,102). However, by unwritten policy, troop commanders were responsible for enforcing the location of a wrecker company's actual place of business and storage lot within the zone in which he operated. For thirty-two years, Lt. Col. Carmody, now Deputy Director of FHP, understood the unwritten policy to be that a place of business was required for each zone in which an operator operated, i.e., was listed for rotation. Palm Beach County FHP had represented orally to Mr. Kauff for at least nineteen years that he must have a place of business in each zone in which he operated and that "place of business" meant the facility where the wreckers were dispatched, personnel were assigned, phone calls were received, and vehicles were stored after towing. Murphy's and Lyons' principals deny ever receiving such oral information from FHP prior to the current litigation. As Deputy Director of the Florida Highway Patrol, Lt. Col. John W. Carmody is responsible for all field operations and for determining the policy for the patrol. In addition, Lt. Col. Carmody supervises the troops and reviews reports with regard to the wrecker rotation system that come to his attention. In 1982, Lt. Col. Carmody was assigned responsibility by the Director of the Florida Highway Patrol to promulgate rules for administering the FHP wrecker rotation system. Among other rules, he was responsible for drafting Rule 15B- 9.003(2). In so doing, he participated in public hearings, researched other Florida rules currently in force and criteria from other states. At formal hearing, Lt. Col. Carmody demonstrated no analogies or similarities between the challenged rule or the acknowledged non-rule policy and any other agency's or jurisdiction's rules or statutes, but neither did Petitioners, who bear the burden of proof, demonstrate any dissimilarity. The relationship of the challenged rule and policy to other FHP rules also promulgated January 22, 1986, is noted throughout this Order. The unwritten place of business policy was carried forward into the administrative rules promulgated January 22, 1986. The purpose of Rule 15B- 9.003(2) was to assure timely response by wrecker operators to telephone calls from FHP in the interest of the safety and convenience of the public. As the author of the rule, Lt. Col. Carmody was primarily concerned with providing for a reasonable response time to the scene of an accident, reducing traffic disruption at the accident scene, and allowing owners to recover their vehicles or personal property within the zone without undue delay. In addition, it was felt that requiring the business to be located within the zone it served would facilitate the inspection of wreckers by FHP. In promulgating the rule, Lt. Col. Carmody retained the place of business requirement due to the agency's favorable experience with its use in implementing the zone system over thirty- two years. At the time of the promulgation of Rule 15-9.003(2), Florida Administrative Code, in January, 1986, "place of business," as the term is used in that rule, was not defined under Chapter 321, Florida Statutes or Chapter 15- 9, Florida Administrative Code. Because Lt. Col. Carmody believed "place of business" was already defined by common sense and thirty-two years of common FHP interpretation so as to already include a sign, office space, personnel on location in the zone, wreckers on location in the zone, and zone addresses and phone numbers painted on each wrecker, Lt. Col. Carmody did not feel that it was necessary to promulgate an additional rule defining "place of business." Instead, Lt. Col. Carmody gave his "common sense" definition over the phone when occasional inquiries were made. In February of 1986, Lt. Ernest Wessels, newly promoted to the post of District Lieutenant of FHP Troop L, Palm Beach County, and newly in charge of Troop L's wrecker rotation system, became aware that several wrecker services on the local list had failed to letter their vehicles with zone address and phone number and that some were operating in multiple zones. In March, 1986, he met with those he thought were all the wreckers and advised them of the requirement that signs be posted on their trucks; however it is not clear that Murphy's or Lyons had any representative at that meeting or whether the sign requirement discussed had to do with the wrecker rotation system or had to do with the Section 715.07(2)(a)7, Florida Statutes, sign requirement for trucks towing from private property (TR-173). Through the chain of command, Wessels requested by a May 16, 1986 memorandum, a definition of "place of business" and instructions on how to deal with specific presumed offenders against the new "place of business" rule, 15B-9.003(2). One presumed offender indicated in that correspondence is Murphy's. Contrary to Lt. Col. Carmody's assumption in 1986 and his testimony at formal hearing, this correspondence does not indicate that any firm agency policy was known throughout FHP at that time as to how the term "place of business", as used in the new rule, was to be defined or interpreted. Otherwise, Lt. Wessels would not have had to ask for clarification. Carmody never saw Wessels' correspondence but sent oral instructions on how to deal with one business about which Wessels had inquired. That business was not owned by either Lyons or Murphy's. At that time, no specific overall criteria were set forth by Lt. Col. Carmody either orally or in writing with regard to defining "place of business" as used in the rule. By letter dated January 19, 1987, Howard Kauff, Chairman of the Board of Palm Beach Services, Inc., d/b/a, Kauff's Towing in three FHP zones in Palm Beach County requested of FHP the definition of "place of business." His letter set out six criteria stating what he understood to be the definition of "place of business." Lt. Col. Carmody responded to Howard Kauff by memorandum dated February 5, 1987. Carmody sent a copy of that memorandum to Inspector William A. Clark, Bureau Chief in charge of Troop L and to Major William R. Driggers, Troop Commander, Troop L, for the purpose of enforcing Rule 15B-9.003(2) and correcting alleged violations, but he intended for the six criteria identified in his memorandum to have statewide effect. The six non-rule policy criteria incidental to Rule 15B-9.003(2), which were identified by Lt. Col. Carmody in his memorandum to Howard Kauff, and circulated to all of Troop L, are set out in Finding of Fact 4 supra. The non-rule policy in Carmody's memorandum, which for the first time interprets, in writing, the term, "place of business" as used in the rule, virtually adopts the criteria suggested in Mr. Kauff's letter, with only two exceptions. Some of Kauff's suggestions were similar also to Lt. Wessels' earlier suggestions, specifically, name and address on a building, a building manned during normal business hours, and not including lease storage. Lt. Col. Carmody did not disseminate a similar memorandum to all troop commanders throughout the State of Florida until January 8, 1988. He did circulate such a memorandum on that date, but only after his deposition had been taken in the instant case and its companion Administrative Complaint cases. At the time Lt. Col. Carmody corresponded with Howard Kauff on February 5, 1987, Palm Beach County was the only area, to his knowledge, which had experienced problems with the "place of business" interpretation because of the use of multiple zone wreckers. Lt. Col. Carmody had no knowledge of similar problems in any other area of the state at that time. Testimony of Carmody and Wessels at formal hearing confirmed this to also currently be the case. Specifically, there is affirmative evidence that FHP has experienced no similar use of wreckers in multiple zones in the Fort Myers area and no requests for interpretation of the rule from that area of the state or any other. Carmody's January 8, 1988 memorandum was intended to insure uniform application of the six "place of business" criteria which Carmody had previously assumed where generally known and applied throughout FHP. The January 8, 1988 statewide memorandum contained some further refinements and embellishments of the language contained in the earlier memorandum to Kauff and Troop L in Palm Beach County, but the only substantive changes were that for the fifth criterion, the wrecker operator was required to "maintain at least one tow truck at the place of business" and for the sixth criterion, the zone address and phone numbers must be "clearly visible to the public." The 1988 memorandum also contained the further directive that: I recommend that you correspond with each wrecker operator to give the wrecker service notice that the above criteria must be met for the wrecker to comply with the requirements of Rule 15B-9.003(2). Subsequent inspections by FHP personnel of wrecker service shall require compliance with these criteria. Violations shall be noted and the wrecker service given an opportunity to correct any deficiency. If the wrecker operator fails to correct any violation after notice by FHP personnel, Order to Show Cause should be issued to the wrecker service advising that noncompliance will result in the removal of the wrecker service from the rotation list. Following the issuance of the Order to Show Cause, the Office of General Counsel should be advised to take action to remove the wrecker service from the rotation list if the wrecker service has failed to comply with the place of business criteria. [Emphasis supplied, Exhibit P-4.] The non-rule policy appears then to have evolved at least by that point in time to clearly include written warnings prior to enforcing the criteria at a subsequent inspection. The parties have, however, stipulated that as to the six enumerated criteria, the language employed in February 1987, not January 1988, is the non-rule policy FHP is enforcing and intends to enforce. Other evidence suggests that it was always the Patrol's practice that warnings precede an Order to Show Cause. No studies or any other form of field research was conducted as to the necessity or propriety of the non-rule policy. Prior to Lt. Col. Carmody's response to Mr. Kauff's letter, no written document existed requiring the six "place of business" criteria of the non-rule policy. The non-rule policy is admittedly not related to reputability, mechanical standards, or safety qualifications set by the FHP for the size of the vehicle the wrecker is intended to handle. However, the agency's primary purpose behind the place of business non-rule policy, as is its purpose for the published "place of business" rule itself, is to insure prompt response time, which Lt. Col. Carmody and Lt. Wessels view as impacting on overall traffic safety. Specifically, the concerns of FHP are that without a sign on the place of business, the wrecker operator is difficult to locate. Lt. Wessels' personal experience in being unable to locate certain operators during his subsequent investigation in preparation for the Administrative Complaint proceedings demonstrates this concern is valid. (See Finding of Fact 26) A sign assists the public in locating the wrecker service for retrieval of towed vehicles or personal property. It assists in accident investigation and reconstruction by providing quick access to the towed vehicle by insurance investigators/appraisers and by FHP. The office space requirement, the requirement of a telephone on the premises, and the requirement of the presence of office personnel during reasonably specified business hours encourages wrecker services to serve the public by receiving phone calls, permitting payment of towing bills or securing the release of vehicles or personal property, and assists in dispatching wreckers in timely response to FHP rotation calls made by telephone. It was established that in Palm Beach County, at least, FHP rotation calls are, in fact, made by telephone. It is noted that these foregoing criteria relating to telephone contact are also consistent with unchallenged Rule 15B-9.003(8) and (9) and that the hours of 9:00 a.m. to 4:00 p.m. are considerably less for office personnel than the 24 hours per day "on call" status specified in Subparagraph (9). These foregoing requirements help to insure a reasonable response time, as does the requirement that the wrecker be stationed at the place of business within the zone. The requirement that the wrecker be stationed at the place of business within the zone also facilitates timely inspections of each vehicle by the FHP. Painting the name, address, and telephone number on each truck fosters accountability of the wrecker operators, insures the reasonable response time due to their presence within the zone, and it may be inferred from all other evidence that it discourages vehicle equipment from being moved from truck to truck. It is further noted that the truck sign requirement is also consistent with Section 715.07(2)(a)7, Florida Statutes, regulating the towing of vehicles from private property. From FHP's perspective, a reasonable response time is a public safety qualification, although it is admittedly not a qualification geared to the size of the vehicles to be towed. Petitioners assert that Rule 15B-9.004(1), providing that an operator will lose a call if a reasonable response time is not evident, is sufficient to ensure reasonable response by wrecker operators and renders both the challenged rule and non-rule policy redundant and unnecessary because Rule 15B-9.007(1) provides for removal from the wrecker rotation list for failure to comply with any other rule. FHP maintains that although FHP is encountering only sporadic problems in Palm Beach County with wrecker response time under the current operation of Rule 15B-9.003(2), without a place of business requirement, wreckers would be encouraged to race from one zone to another to avoid violating Rule 15B-9.004, and the public would thereby be endangered by traffic hazards created by wreckers hurriedly responding to a call. Wrecker services are reluctant to turn down a rotation call. Murphy's, for instance, charges up to twice as much for an FHP list tow as for other tows. If a wrecker does not respond to a call from FHP, substantial revenues may be lost. Lt. Col. Carmody and Lt. Wessels opined that absence of an enforceable "place of business" rule would largely obliterate the statutory areas/zones concept altogether. See Section 321.051, Florida Statutes, supra. Eliminating the place of business requirement would cause significant operational problems for FHP. Timely response by wreckers could not be effectively enforced on the authority of Rule 15B-9.004 alone. If a wrecker were sent from one zone into another and the wrecker were delayed, an excuse given to the Patrol, such as weather or traffic congestion could never be verified. Eliminating the place of business requirement would allow wreckers to cross zones so that timely response would have to be judged on a case by case basis. In view of the difficulty of judging the reasonableness of each response by a wrecker and problems incurred in locating the business for the purpose of inspecting the wreckers or releasing the vehicle or personal property to the motorist, eliminating the place of business requirement would create what Lt. Col. Carmody described as "an administrative nightmare for FHP." It is found that this is a fair assessment of the situation, despite Lt. Wessels' testimony that he knew of no specific facts showing that the public has yet been adversely affected in response time or retrieval of vehicles by the method in which Murphy's and Lyons' operate their businesses. Upon receiving Lt. Col. Carmody's response of February 5, 1987, Howard Kauff wrote Captain Hardin of Troop L, asking for removal of several wrecker operators, among them, Murphy's and Lyons, whom Kauff had identified as allegedly failing to comply with the six "place of business" criteria specified by Lt. Col. Carmody. Lt. Wessels subsequently conducted an investigation to determine if any of the wrecker services identified by Howard Kauff were in fact in violation of Rule 15B-9.003(2), as interpreted by Lt. Col. Carmody's memorandum of February 5, 1987. For varied reasons, including being unable to locate some satellite business addresses, Lt. Wessels concluded that eight companies did not comply with the criteria and recommended their removal from the appropriate rotation list. Petitioners Murphy's Towing and Lyons Auto Body, Inc. were included in the eight wrecker services identified by Lt. Wessels. Following Lt. Wessels' investigation, FHP issued to the eight wrecker companies Orders to Show Cause why they should not be removed from the appropriate rotation list. Three of the wrecker services complied with the "place of business" requirement. Wessels recommended that the remaining five, which included both Petitioners Murphy's and Lyons be removed. Pursuant to Wessels' recommendations, the Department issued Administrative Complaints against the five wrecker operators. Three wrecker operators were removed from the respective lists--two voluntarily and one by Order of the DHSMV. Murphy's has participated in the wrecker rotation system for eight years without any complaint, citation, or criticism for untimely response. Its main place of business and wreckers have been inspected each of the years immediately prior to service of the Order to Show Cause without any FHP comment on its failure to comply with the "place of business" rule or non-rule policy, despite Lt. Wessels' being aware of Murphy's multi-zone operation as early as May 16, 1986. The July 22, 1987, Administrative Complaints against the Petitioners enunciate only the non-rule policy as it had evolved up to February 5, 1987 and as set out in Finding of Fact 4 supra., not as it had evolved as of the January 8, 1988 statewide memorandum described in Finding of Fact 20 supra. Lyons has participated in the wrecker rotation system for twenty years without any FHP concerns over untimely response. Its history of successful yearly inspections and no FHP comment concerning the "place of business" rule and non- rule policy has been identical to Murphy's for the last three years immediately preceding the Order to Show Cause. Murphy's and Lyons are two of Kauff's largest competitors. Of the ten multi-zone wrecker operators in Palm Beach County, only Mr. Kauff and one other met the criteria suggested by Kauff's letter and enforced by non-rule policy prior to the Orders to Show Cause. See Finding of Fact 27. In January, 1988, FHP learned that Kauff's Towing did not maintain office personnel at its business location in Lake Worth, Zone 4 from 9:00 a.m. to 4:00 p.m., Monday through Friday. Kauff was verbally advised by FHP of the noncompliance. This notice was followed by written confirmation on January 20, 1988 and February 10, 1988. In response to this notice by FHP, Howard Kauff directed his terminal manager to provide personnel at the location during the required time period. Kauff was advised that noncompliance with the criteria would result in removal of Kauff's from the rotation list in Zone 4, Palm Beach County. At formal hearing, Lt. Col. Carmody stated that his memoranda did not address whether outside or inside storage must be available in a zone. In his opinion, FHP could not regulate that aspect due to prior Attorney General Opinion 85-60. (See the Conclusions of Law supra.) He opined that a wrecker operator using a central dispatch may be sufficient although the criteria he seeks to enforce requires a phone at each place of business. Lt. Wessels essentially concurred. Lt. Wessels was unsure how response time would be adversely affected if a truck were maintained in the assigned zone but there was not a building located in the assigned zone or if a tow truck were not physically located at the building location designated as a place of business in the zone but was either patrolling in the zone or parked elsewhere in the zone. Lt. Wessels was unable to testify whether ownership or rental of a building by an operator had significance with regard to the "place of business" rule or the six non-rule policy criteria. Lt. Wessels would accept, within the six criteria, an operator's use of a storage lot maintained by the lot's owner who was not an employee of the wrecker operator. However, it was not demonstrated that Lt. Wessels is in a policy making position for the agency, and his testimony as to the foregoing matters at best demonstrates some further confusion as to how the six interpretative non-rule policy criteria are to be applied on a case by case basis. It does not demonstrate that those six criteria have been applied to Petitioners in any unequal fashion, merely that application of the six criteria is best made on a case by case basis. In the course of discovery, Respondent agency denied the following Request for Admission, "2. Admit that the interpretation of the place of business requirement has not been equally applied to all wrecker operators in the State of Florida." The evidence as a whole does not demonstrate such unequal application of the promulgated rule or the non-rule policy to Petitioners in this cause, so as to invalidate either the rule or the non-rule policy upon that ground. Apparently, as of the date of formal hearing, both rule and non-rule policy are being applied evenhandedly in Palm Beach County where violations have been documented. The testimony of Lt. Col. Carmody and Lt. Wessels demonstrates that no reports of violation have been made from other counties. Petitioners did nothing to refute this testimony nor did they provide any evidence of multiple zone operators in other counties or zones outside of Palm Beach County who were systematically permitted to evade the rule and/or non-rule policy.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant hereto, Respondent was a certified residential contractor, holding license no. CR-C018860, issued by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Sometime prior to May, 1985, Respondent verbally contracted with Stavros Kountanis (Kountanis), owner of a commercial building located at 658 North Dixie Highway, New Smyrna Beach, Florida, to furnish labor and materials for work to be performed on the commercial building. The contracted work included installation of a sink, a toilet, a new back door, a dropped ceiling with light fixtures, partitioning off restrooms and covering a drain used as a grease trap with concrete. The contract price of the project, based on Respondent's calculation for labor and material, was $1,500.00 which Respondent received from Kountanis in the form of a loan. Respondent did not obtain a building, plumbing, or electrical permit for the work performed on the commercial building identified in paragraph 2 above and contracted for by the Respondent. At no time material to these proceedings was Respondent licensed other than as a certified residential contractor. Along with Respondent, Cardy Moten, Respondent's partner and Cardy Moten's helpers performed the work for which Respondent had contracted for with Kountanis. The limitations placed on Respondent's license by statute prohibited him from contracting for, or performing, the type work which he had contracted for and performed. At no time material to these proceedings was Cardy Moten or his helpers on the Kountanis job licensed to perform commercial contracting, plumbing contracting or electrical contracting. At all times material to these proceedings Sections 105.1 and 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida were in full force and effect. Respondent's failure to obtain a permit to perform the work contracted for with Kountanis before performing the work was in violation of Section 106.1, Standard Building Code, as adopted by the City of New Smyrna Beach, Florida and Section 10-96, Building Regulations, New Smyrna Beach Code. Respondent was aware that Kountanis had not obtained a permit for the work which Respondent had contracted for with him. The work depicted in Petitioner's Exhibit No. 4A thru 4D was work that Respondent had contracted for and performed or performed by Cardy Moten and his helpers at Respondent's direction.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Board enter a final order finding the Respondent guilty of the violations charged in the Administrative Complaint and for such violations it is RECOMMENDED that the Board suspend the Respondent's certified residential contractor's license for a period of one (1) year and assess the Respondent with an administrative fine of $500.00, stay the suspension and place the Respondent on probation for a period of one (1) year, provided the Respondent pays the $500.00 fine within ninety (90) days of the final order. Respondent's failure to pay the $500.00 fine within the time specified will result in his certified residential contractor's license being suspended for a period of one (1) year with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Board for reinstatement of his license. RESPECTFULLY submitted and entered this 25th day of November, 1986 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2638 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 7. 6. Adopted in Finding of Fact 4. 7. Adopted in Finding of Fact 5. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 6. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent did not submitted any Proposed Findings of Fact. COPIES FURNISHED: Mr. Fred L. Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Suite 504 111 East Coast Line Drive Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lagran Saunders, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph Vernon Eubank Post Office Box 9269 Glenwood, Florida 32722
The Issue The issues are: (a) whether the accident on December 12, 1995, involving a shrimp trawler, the Atlantic Sun, resulted in a discharge of pollutants into the Atlantic Ocean and caused natural resource damages; and, if so, (b) what amount does Petitioner William A. Harden owe the Department of Environmental Protection for investigation costs incurred in investigating the break up of the Atlantic Sun and for natural resource damages resulting from the accident.
Findings Of Fact On December 12, 1995, the commercial fishing vessel, the Atlantic Sun, went aground on the south jetties in the Atlantic Ocean at the entrance to the channel of St. Mary's River. The shrimp trawler broke apart on the jetties near Fernandina Beach, Florida. Debris from the wrecked ship washed onto the beaches near the jetties. The United States Coast Guard (USCG) arrived at the scene of the accident and removed Roger Cummings, Captain of the Atlantic Sun, and Daniel Boone, an owner of the vessel, from the scene of the wreck. The USCG informed the Florida Marine Patrol (FMP) about the accident on December 12, 1995. Michael Lehman, FMP officer, met the USCG officers investigating the accident when they brought Captain Cummings and Mr. Boone to shore. Captain Cummings stated that the ship had 1200 to 1300 gallons of diesel fuel in its tanks when it hit the jetties. The water was too rough for Officer Lehman to investigate the accident scene that night. Officer Lehman and another FMP officer went to the site of the wreck on the morning of December 13, 1997. On his way to the accident scene, Officer Lehman's boat ran through a sheen of diesel fuel from Eagan's Creek to the end of the jetties. Officer Lehman found the Atlantic Sun upside down at the end of the rock jetties. There was a strong smell of diesel fuel at the site of the wreck. Diesel fuel ran down both sides of the jetties. The fuel was bubbling up on both sides of the wrecked ship. On December 14, 1995, the flow of fuel from the capsized vessel was still not contained. Officer Lehman estimated that approximately 500 gallons of fuel had been discharged into the ocean. He based this estimate on his personal observation at the accident scene, personal experience as an investigator of pollutant discharges, and witness statements. USCG officers estimated that the Atlantic Sun discharged 1,000 gallons of diesel fuel. The diesel fuel sheen on the water surface eventually affected a large area. It covered the entrance to St. Mary's River Channel from bank to bank. The fuel flowed west and inland from the ship wreck. It covered much of Cumberland Sound. It affected coastal waters from the accident site to Ft. Clinch State Park Beach and south approximately two miles. Special management areas which were affected are: Ft. Clinch State Park, Cumberland National Seashore, and Ft. Clinch Aquatic Preserve. By December 16, 1995, Officer Lehman could no longer see fuel coming from the area of the wreckage. By that time, the spilled fuel had dissipated. The accident occurred within one statute mile seaward of the coastline of the state of Florida. The two FMP officers worked a total of 18 hours during the course of their investigation. The cost to Respondent for the two officers' time was $244.80. The FMP officers used a single engine boat in their investigation for five hours. The single engine boat cost Respondent $100.00. They used a twin engine boat for six hours to conduct the investigation. The twin engine boat cost Respondent $240.00. The FMP officers drove a total of 76 miles in patrol vehicles. At $0.20 per mile, the total cost for mileage was $15.20. The FMP officer spent $5.00 developing pictures which were taken during their investigation. Respondent incurred clerical expenses during the investigation in the amount of $33.60. Respondent's total cost for the investigation was $638.60. Respondent assessed Petitioner with damages to natural resources. The damages were based on the total amount of pollutants discharged into Florida's coastal waters as a result of the Atlantic Sun going aground on the jetties. The amount of pollutants was 500 gallons of diesel fuel. Impact to special management areas was also taken into consideration in determining the natural resource damages. Respondent utilized a statutory formula to assess Petitioner with natural resource damages in the amount of $8,008.47. Respondent sent Petitioner a final agency action letter advising him of the total assessment in the amount of $8,647.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order assessing Petitioner $638.60 in investigative costs and $8,008.47 in natural resource damages. DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998. COPIES FURNISHED: Kisha R. Pruitt, Esquire Kathelyn M. Jacques, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Daniel Boone Boone and Harden Atlantic Sun Post Office Box 438 Darien, Georgia 31305 William A. Harden Boone and Harden Atlantic Sun Route 3, Box 3158 Townsend, Georgia 31337 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a four-count Administrative Complaint. The Administrative Complaint charges the Respondent with violation of the following statutory provisions: Sections 489.129(1)(g), 489.129(1)(h)2, 489.129(1)(k), and 489.129(1)(n), Florida Statutes (1996 Supp.).
Findings Of Fact The Respondent, Allen Fader, is, and has been at all times material, a licensed Certified General Contractor, having been issued license number CG C007504 by the State of Florida. At all times material, the Respondent was licensed to contract as an individual. The Respondent, by virtue of his license, advertised construction services for Gold Coast Construction Services, Inc., during 1997. The Respondent presented a business card, with the name of Gold Coast Construction Services, Inc., to Ruby M. Shepherd, a customer, in April of 1997. On April 14, 1997, the Respondent, doing business as Gold Coast Construction Services, Inc., contracted with Ruby M. Shepherd to enclose a patio and to install hurricane shutters at Ms. Shepherd's residence located at 12325 Northwest 19th Avenue, Miami, Florida. The contract was conditioned on Ms. Shepherd being able to obtain financing to pay for the construction described in the contract. The exact amount Ms. Shepherd was required to pay under the original April 14, 1997, contract cannot be determined from the evidence in this case.4 The Respondent assisted Ms. Shepherd in obtaining a loan for the financing of the construction work described in the contract. It took several months to obtain a loan. Ultimately, through the efforts of the Respondent, and of a person engaged by the Respondent to help obtain a loan, Ms. Shepherd received a loan through Town and Country Title Guaranty and Escrow. The check from Town and Country Title Guaranty and Escrow was in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The check was made payable to Ms. Shepherd and to Gold Coast Construction Services, Inc. At the request of the man who helped obtain the loan, Ms. Shepherd endorsed the loan check and agreed for the check to be delivered to the Respondent. The Respondent, doing business as Gold Coast Construction Services, Inc., negotiated the loan check and received all of the proceeds in the amount of twelve thousand nine hundred seventy-nine dollars and fifteen cents ($12,979.15). The Respondent received the proceeds of the loan on or about September 12, 1997. The Respondent did not take any action on Ms. Shepherd's construction project until November 14, 1997. On that day, the Respondent placed an order for the material for the hurricane shutters on Ms. Shepherd's project. Nothing more was done on Ms. Shepherd's project for quite some time. Towards the end of February of 1998, the Respondent had some health problems, which caused him to be unable to work for several weeks. Eventually, the Respondent attempted to pick up the shutter materials he had ordered for Ms. Shepherd's project. As a result of the delay, those materials had been returned to stock and had been sold to someone else. The Respondent ordered the materials again. Eventually, in June of 1998, the Respondent had the shutter materials delivered to Ms. Shepherd's residence, and began the process of installing the hurricane shutters. In the meantime, from September of 1997 until January of 1998, the Respondent did not contact Ms. Shepherd. During this period of time, Ms. Shepherd called the Respondent's office numerous times and left numerous messages asking the Respondent to return her calls. From September of 1997 until January of 1998, the Respondent did not return any of Ms. Shepherd's calls. In January of 1998, Ms. Shepherd was finally able to speak with the Respondent. From January of 1998 until the installation work began in June of 1998, Ms. Shepherd spoke to the Respondent on numerous occasions in an effort to find out when the Respondent was going to begin work or return the money he had been paid. During this period of time, the Respondent repeatedly made false assurances to Ms. Shepherd that the work would be performed within two weeks. On or about June 12, 1998, the Respondent obtained a building permit for Ms. Shepherd's project from the Miami-Dade Department of Planning, Development, and Regulation. Installation of the hurricane shutters began that same week. The installation process was delayed because some of the materials did not fit and had to be returned to the manufacturer for modifications. Following the modifications, the installation process resumed. After a few more days, the Respondent told Ms. Shepherd the hurricane shutter work was finished and that he was not going to do the patio construction work, because the loan Ms. Shepherd had received was not enough money to pay for both projects. After the Respondent told Ms. Shepherd that the installation of the hurricane shutters was complete, the Respondent never did any further work on Ms. Shepherd's construction project. The hurricane shutters installed at Ms. Shepherd's property by the Respondent were not installed correctly. Several of the hurricane shutters will not open and close properly. Several of the hurricane shutters are insufficiently fastened. A necessary shutter over the storage room door was never installed. The problems with the subject hurricane shutters can be corrected. The cost of the corrections necessary to make the shutters operate properly and to fasten them securely is approximately one thousand dollars ($1,000). The Respondent never called for an inspection of the installation of the hurricane shutters at Ms. Shepherd's residence. In their present condition, those hurricane shutters will not pass inspection, because they were installed improperly. If corrections are made, those hurricane shutters will pass inspection. By reason of the facts stated in paragraphs 12 and 13 above, the Respondent failed to properly and fully complete the hurricane shutter portion of the contracted work. The Respondent never did any work on the patio portion of the contracted work. At some point in time between September of 1997 and June of 1998, Ms. Shepherd and the Respondent agreed to a modification of their original contract due to the fact that the proceeds of the loan obtained by Ms. Shepherd were insufficient to pay for both the hurricane shutters and the enclosure of the patio. The essence of their modified agreement (which was never reduced to writing) was that the Respondent would not do the patio enclosure portion of the contracted work; the Respondent would do the hurricane shutter portion of the contracted work; the Respondent would be paid for the hurricane shutter portion of the contracted work; and any remaining balance of the loan proceeds that had been paid to the Respondent would be paid back to Ms. Shepherd. Implicit, but apparently unstated, in this modified agreement, was the notion that the Respondent would charge a fair price for the hurricane shutter portion of the contracted work. A fair price for the hurricane shutter portion of the contracted work at Ms. Shepherd's residence, including all materials, labor, overhead, and profit, would be approximately four thousand dollars ($4,000).5 The price of four thousand dollars presupposes properly installed hurricane shutters that will pass inspection. As previously mentioned, it will cost approximately one thousand dollars ($1,000) to make the corrections to the subject hurricane shutters which are necessary for the shutters to function properly and pass inspection. Accordingly, the fair value of the work performed by the Respondent at Ms. Shepherd's residence is three thousand dollars ($3,000). Ms. Shepherd has paid $12,979.15 to the Respondent, doing business as Gold Coast Construction Services, Inc. The fair value of the work performed by the Respondent at Ms. Shepherd's residence is $3,000. Therefore, the Respondent has been paid $9,979.15 more than he is entitled to keep. As of the date of the final hearing, the Respondent has not paid back any money to Ms. Shepherd.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued in this case concluding that the Respondent is guilty of the violations charged in each of the four counts of the Administrative Complaint, and imposing the following penalties: For the violation of Section 489.129(1)(g), Florida Statutes (1996 Supp.), an administrative fine in the amount of $100.00. For the violation of Section 489.129(1)(k), Florida Statutes (1996 Supp.), an administrative fine in the amount of $2,000.00. For the violation of Section 489.129(1)(n), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,000.00. For the violation of Section 489.129(1)(h), Florida Statutes (1996 Supp.), an administrative fine in the amount of $1,500.00, and placement of the Respondent on probation for a period of one year. It is further RECOMMENDED that the final order require the Respondent to pay restitution to Ms. Shepherd in the amount of $9,979.15, and to pay costs of investigation and prosecution in the amount of $266.55. DONE AND ENTERED this 9th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of September, 1999.
The Issue The issue in this case is whether Southwest Land Developers, Inc. is entitled to a general permit for the operation of a construction and demolition debris disposal facility at the site of a previously permitted operation in Port Charlotte.
Findings Of Fact Southwest Land Developers, Inc. (Applicant) is a Florida corporation whose shares are divided equally between Bruce Laishley and Rick Treworgy. Applicant owns and operates a construction and demolition debris disposal (C&D) facility located at 27595 North Jones Loop Road in Punta Gorda. Applicant's shareholders quitclaimed the property to Applicant on March 11, 1993. References to "Applicant" prior to this date are to Applicant's shareholders. Applicant intends to continue operating the facility under a general permit. Applicant filed a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Disposal Facility dated June 5, 1995 (NOI) (Applicant Exhibit Number 1). The NOI describes the facility as a receiving site for construction and demolition materials for recycling and disposal. The NOI states that the facility shall be constructed 28 feet high and covered with two feet of clean soil and grass, thus reaching a total height of 30 feet above existing ground level. By letter dated July 18, 1995, Department of Environmental Protection (DEP) informed Applicant that the agency did not object to Applicant's use of the general permit through July 18, 2000, for the activities described in the NOI. Applicant opened the C&D facility in 1990 under a general permit. Applicant filed on May 30, 1990, a Notification of Intent to Use a General Permit for a Construction and Demolition Debris Solid Waste Facility (1990 NOI) (Petitioner Exhibit Number 5). The 1990 NOI states that the property consists of 19.18 acres, including two acres devoted to waste disposal. (A diagram accompanying the 1990 NOI accurately reports that the actual acreage is 18.18 acres.) The 1990 NOI states that the planned active life of the facility would be two years. The general description of operations contained in the 1990 NOI mentions that two acres would be used for waste disposal. The 1990 NOI describes normal business hours as Monday through Saturday 7:30 am to 5 pm. The 1990 NOI assures that gates would be used to prevent unauthorized dumping, only clean debris and C&D materials would be accepted, unauthorized materials would be transported to the County landfill, and all areas would be covered with two feet of clean soil and sodded or seeded to control erosion. After closure, the 1990 NOI promises that: "All filled areas then will serve as a landscaped berm to provide a privacy barrier to future home owners." Two diagrams accompany the 1990 NOI. The first is a facility illustration depicting a rectangular piece of property with two proposed wooded homesites toward the front (north) facing North Jones Loop Road, an excavation site/lake taking up at least half of the back of the property, and a thin strip designated to receive C&D debris behind (and, for a short distance, alongside the rear of) the excavation site/lake. The first diagram also reveals that a creek (Alligator Creek) crosses the northwest corner of the property. The second diagram accompanying the 1990 NOI is a diagram of the proposed landscape berm running along the south property line behind the lake. The proposed landscape berm is the above-described strip to be formed from C&D debris. The strip is 80 feet wide running along 600 feet at the back of the property and extending about 150 feet to the north at either end. and is tapered with a 2:1 (two feet horizontal to one foot vertical) slope. The second diagram displays all elevations as "ELEV. x," such as the high water table as "ELEV. 15.0'." The elevation of the ground is "ELEV. 21.0'" to "ELEV. 17.0'." The elevation of the top of the C&D mound is "ELEV. 33.0'," which includes two feet of clean fill capping the mound. Thus, the second diagram represents that the C&D mound would extend from the high water table at 15' NGVD to 33' NGVD for an apparent height, from existing ground, of 12-16 feet. The second diagram shows that the elevation of the proposed 8.18-acre lake would be 15 feet NGVD. The second diagram also reveals a 10-foot wide swale running between the strip and the south property line. Prior to authorizing Applicant to proceed under the general permit in 1990, DEP required Applicant to obtain a permit for the management and storage of surface water (MSSW) from the Southwest Florida Water Management District (SWFWMD). Instead, Applicant obtained a letter from SWFWMD stating that the project was exempt from permitting due to the small area of land involved. The SWFWMD exemption letter was erroneously issued, based partly on a confusion between the disposal area, which was below the MSSW threshold of ten acres, and the total, contiguous land under common ownership, which exceeded the 10-acre threshold. SWFWMD personnel also believed at the time that Applicant proposed the "construction of a landscape berm and filling a borrow pit; not a 30 foot high C&D Facility" (Petitioner Exhibit Number 4). In a letter dated July 25, 1995, SWFWMD noted this misconception and determined that the project was not exempt from the requirement of an MSSW permit. In any event, after receiving the SWFWMD exemption letter in 1990, DEP allowed Applicant to construct the C&D facility under the general permit, which remained effective for five years. The first phase of Applicant's activities on the site involved the removal of marketable fill from the rear of the property. Most of the original two-acre fill site was contained in this larger excavation area. During the first phase of construction, no offsite material was used to fill the excavation. Later, during the second phase of Applicant's activities, clean offsite debris, consisting of earth and concrete, was added below the water table. Once the fill reached the elevation of the water table, Applicant began allowing the addition of construction and demolition debris. Applicant first received construction and demolition debris at the end of 1993 or early 1994. Shortly after construction began on the facility, a DEP employee noticed that the facility had exceeded what Applicant had described in the 1990 NOI. Instead of demanding a new NOI, the DEP employee told Applicant to supply an engineering update. By letter to DEP dated September 25, 1991, Applicant provided new drawings, showing, among other things, that all water was to be retained onsite (1991 Update) (Petitioner Exhibit Number 2a). The 1991 Update contains three drawings: a diagram of existing conditions with elevations, a diagram of proposed conditions with elevations, and a cross-section of part of the second diagram. The first diagram attached to the 1991 Update shows a rectangle of land with prevailing elevations ranging from 10-12 feet. Perimeter elevations are 18-22 feet. A large area inside the rectangle contains elevations of 2.3- 5.8 feet. Absent dewatering, this large area would be a lake typically 9-12 feet deep. Compared with information from the 1990 NOI, the first diagram reveals that Applicant had already removed about eight feet of fill from the uplands and 15 feet of fill from the lake, which was somewhat smaller than the ultimate size proposed in the first diagram of the 1990 NOI. The second diagram attached to the 1991 Update confirms substantial departures from the plans contained in the 1990 NOI. The lake is relocated to the north, still south of what was depicted as proposed homesites on the first diagram of the 1990 NOI, and it is reduced from 8.18 acres to 2 acres. The second diagram of the 1991 Update reveals that the area designated to receive C&D debris has been expanded. Formerly ending about 250 feet from the southeast corner of the property, the area now extends to about 600 feet from the southeast corner of the property. The second diagram reveals that the proposed C&D mound as grown by 17 feet since the 1990 NOI. Previously reaching a height of 33' NGVD, the proposed mound in the 1991 Update would reach a height of 50' NGVD. As before, the mound would be capped by two feet of clean fill. From existing ground level, the height of the capped C&D mound has grown from 12 feet high in the 1990 NOI to 29 feet high in the 1991 Update, using the value of 21' NGVD from existing ground level, as set forth in the 1990 NOI. As depicted in the 1991 Update, the fill area is expanded from an 80- foot wide strip covering about two acres to a much larger area. The scale on the diagrams showing existing and proposed conditions is wrong, due to reduction in photocopying. The actual scale is one inch equals about 83 feet, as is obvious in the relationship of the eight-inch south property line to the 662.3 feet it is intended to represent. (The 1199.89-foot measurement on the east property line is inaccurate. It represents the entire east property line, including the area reserved for homesites. See first diagram in 1990 NOI. The area actually depicted on the two diagrams omits the northerly 162 feet of the entire parcel.) The fill area in the second diagram attached to the 1991 Update is 6.67 acres. About 3.5 acres of the fill area would be covered by 33 feet of C&D fill, with the remainder under progressively less fill due to the tapering off of the sides of the roughly 30-foot high mound. The first and second diagrams reveal that the excavation area has consumed 75-100 feet of the area to the north, which had been reserved for wooded homesites under the first diagram of the 1990 NOI. The second diagram depicts a swale running along the entire south perimeter and east and west perimeters north to the beginning of the relocated lake, where the swale empties into the lake. The interior swale mound (closer to the C&D fill) is a constant elevation of 20 feet NGVD. The third diagram attached to the 1991 Update shows that, although the slope of the fill area is reduced to 3:1, the height of C&D debris is increased from 31 feet NGVD to 48 feet NGVD. For stormwater calculations, the third diagram projects that 1/2 inch retention over 18.18 acres would raise the lake level by 4.5 inches, as opposed to merely 1.11 inches for the larger lake shown in the second diagram of the 1990 NOI. Satisfied with the 1991 Update, despite the substantial changes in the proposed project, DEP's representative merely added the three new drawings to the file. The representative did not revisit the general permit under which Applicant was then operating because DEP does not allow the modification of a general permit. The NOI contains a narrative and illustrative description of the C&D facility, as described above, including the 1991 Update. The first diagram of the NOI is the second diagram of the 1991 Update, except for a correction in the bottom elevation of the relocated lake. The second diagram of the NOI is the third diagram of the 1991 Update. The third diagram of the NOI accurately depicts the changes through the 1991 Update. The third diagram reveals that the northeast corner of the facility is within 200 feet of a potable water well. The third diagram, which is entitled a Site & Closure Plan, states that the north line of the permitted area, which does not include the proposed wooded homesites to the north, depicts the "limits of original footprint." Actually, the northeast corner of the permitted part of the property is almost 200 feet farther north than depicted in the first diagram of the 1990 NOI. In the 1990 NOI, the northeast corner of the permitted area was about 450 feet from the northeast corner of the property. In the 1991 Update, assuming that Applicant could unilaterally extend the permitted area without a new notice of intent, the northeast corner of the permitted area cannot be located with any certainty due to the roughness of the hand- drawn perimeter in the first and second diagrams and their failure to disclose the northeast property corner. In the NOI, the northeast corner of the permitted area is less than 400 feet from the northeast corner of the property. Other relevant features of the NOI are assurances in the operational plan that no odor problems "are expected" due to the inert nature of the fill. In the event of objectionable odors, Applicant promises to control them by "covering any decaying materials periodically as required." The NOI summarizes the results of a geotechnical investigation, which was a requirement added since the 1991 Update. The Summary states that the report results lead Applicant to "anticipate the ground will have no problem supporting the facility to a height of 30' above existing ground." The geotechnical report indicates that the purpose of the investigation was to determine the suitability of subsurface soils (to an excavation depth of 15-20 feet) for use as fill. The geotechnical report concludes that the "proposed Quarry Development" is feasible, but recommends excavation no deeper than 15 feet, which would leave a three-foot undisturbed layer between the bottom of the excavation and the top of the confining layer. In a subsequent addendum, the report was amended to recommend excavating no deeper than 18 feet. Since beginning operation in 1990, the C&D facility has received discarded construction materials, as intended. Applicant recycles some of the materials that it receives, such as copper, aluminum, and steel. Two years ago, DEP prohibited C&D facilities from accepting containers, so Applicant placed a dumpster in the front to collect containers for later removal to approved sites. In the typical transaction, a spotter employed by Applicant meets the truck in the staging area for unloading. The spotter determines that the load is in compliance before permitting the truck driver to dump. If the load is completely unacceptable, the spotter orders the truck driver to leave the site without dumping. Otherwise, the spotter tells the driver to discard all containers in the dumpster in the front of the facility. Then, after the remaining load is dumped, the spotter removes recyclables and places them in a temporary storage area before they are taken by contractors or transported to approved locations elsewhere. The spotter also removes unauthorized items, such as appliances, hazardous materials, tires, furniture, batteries, and oil-based paint, and sets these materials aside in a designated area for transporting to approved locations elsewhere. Next, Applicant's equipment operator crushes the load. If he sees anything unauthorized in the pile, he orders the spotter to remove it. In the five years that the C&D facility has operated, there have been two cited violations. Neither is indicative of a intentional or reckless disregard of the law. It is questionable whether the violations even suggest negligence on the part of the operator of the facility. The first violation involved a 55-gallon drum of lacquer thinner, which the spotter had detected and placed to one side while the manager decided how to dispose of it properly. Due to its surveillance of the customer who left the drum, DEP inspected the facility immediately after Applicant's facility received the drum and issued a warning letter to Applicant dated December 22, 1992. Applicant complied with DEP's orders and disposed of the drum correctly. The other violation involved the acceptance of containers. Due to a misunderstanding of a change in the law, Applicant allowed containers to be dumped, as it had previously done lawfully. DEP inspected the facility in mid- 1993 and informed Applicant that it could not accept containers anymore. Applicant removed all of the accessible containers, and DEP reinspected and determined that the facility was in compliance. Applicant's employees remove litter from Jones Loop Road, 1.5 miles in one direction and one mile in the other, three days a week. Applicant operates the facility from 7 am to 5 pm Monday to Friday and 7 am to 2 pm on Saturday, which represents one-half hour less weekly than permitted (three hours less on Saturday, but one-half hour more each weekday, as the facility was to open at 7:30 am, not 7 am). During the two summers since Applicant began accepting C&D debris-- 1994 and 1995--strong, noxious odors have emanated from the site. Smelling like sewage or sludge, the odors irritate the throats and trigger headaches of nearby persons. One of the Petitioners noted that the odor permeated the air conditioning ducts of a nearby home if the garage door were left open. The source of the odor is unknown, but is suspected to be some form of sulphur, perhaps leaching from the gypsum in the drywall debris. There were no odor problems before Applicant began accepting C&D debris and dramatically deepened the retention pond. Applicant has spent up to $15,000 trying to eliminate the odor, but has not yet succeeded. There are other complaints concerning offsite runoff and groundwater contamination involving Alligator Creek and nearby property not owned by Applicant. The evidence in the record concerning these matters is anecdotal and best reserved for more systematic consideration in the MSSW permit (now known as environmental resource permit) for which Applicant from SWFWMD. By letter dated September 22, 1995, SWFWMD acknowledged that it is reviewing Applicant's application for an MSSW permit and requested Applicant to "[c]urtail all landfill activity to the greatest extent possible until the permit application has been approved by the District."
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order denying the subject general permit. ENTERED on December 29, 1995, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this December 29, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3712, 95-3713 and 95-3714 Rulings on Petitioners' Proposed Findings 1-4: adopted or adopted in substance, except that discrepancies between the proposal and actual work is rejected as irrelevant. Such matters are appropriate to enforcement proceedings, not permitting proceedings. 5 (first sentence): adopted or adopted in substance. 5 (second sentence): rejected as irrelevant. The original individual applicants remained liable on the original general permit until they notified DEP and obtained DEP's consent to the transfer. Rule 62-4.120(5). This violation of Chapter 62-4 is thus technical and not a suitable basis on which to deny a new permit. 5: rejected as unnecessary. 6: adopted or adopted in substance. 7-8: rejected as irrelevant. See ruling on 1-4 above. 9: adopted or adopted in substance. 10: rejected as unsupported by the appropriate weight of the evidence, as to proposed implication that this incident constitutes evidence of Applicant's "irresponsibility." The sole evidence of "irresponsibility" is based on the repeated noxious odors. 11: rejected as unsupported by the appropriate weight of the evidence. 12: rejected as irrelevant. See ruling on 5 (second sentence) above. Rulings on Applicant's Proposed Findings 1a: adopted or adopted in substance, except as to acreage. 1b-1f: adopted or adopted in substance. 1g: rejected as unsupported by the appropriate weight of the evidence, as to characterization of minor violations noted in the recommended order. 1h: rejected as unsupported by the appropriate weight of the evidence. 1i: rejected as irrelevant, unsupported by the appropriate weight of the evidence, and recitation of evidence. 1j: rejected as irrelevant. COPIES FURNISHED: Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 W. Douglas Beason Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Southwest Land Developers, Inc. c/o Bruce Laishley 28062-A Mitchell Ave. Punta Gorda, FL 33982 William Nelson Edwards 27365 Jones Loop Rd. Punta Gorda, FL 33982 Sharon B. Winesett 27650 Jones Loop Rd. Punta Gorda, FL 33982 Richard W. and Sherra Winesett 1574 Passaic Ave. Ft. Myers, FL 33901
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint be dismissed. DONE and ENTERED this 8th day of December, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 8th day of December, 1988.
The Issue The issues in this case are whether Franklin County (County) violated the law by placing unauthorized construction debris and material within a permitted revetment seaward of the coastal construction control line (CCCL); and whether the County should be required to take corrective action to remediate this violation.
Findings Of Fact Count I Since an undisclosed date in the late 1970s, the County has owned and maintained that portion of County Road 370, also known as Alligator Drive, located at Alligator Point in the southeastern tip of the County. Before then, the road was classified as a secondary road owned and maintained by the Department of Transportation (DOT). Sometime during the late 1970s, the Legislature transferred the ownership and control of some secondary roads, including County Road 370, from the State to local governments. A revetment is a man-made sloping structure, typically using rock boulders, designed in this case to protect County Road 370 from coastal erosion by absorbing the energy of incoming water from the Gulf of Mexico. It is the only structure protecting that roadway from the open winds and waters of the Gulf of Mexico. In regulatory parlance, a revetment is "armoring," also known as a "rigid coastal armoring structure" within the meaning of Florida Administrative Code Rule 62B- 33.002(5) and chapter 161. The Department has established a CCCL for the County. A permit is required before any person may conduct construction activities seaward of that line. However, if public infrastructure is threatened or damaged by erosion related to a storm event, as an emergency measure, a local government may construct a temporary armoring structure without first obtaining a permit from the Department. See § 161.085(3), Fla. Stat. Once the temporary structure is installed, the local government has 60 days in which to remove it or file an application for permanent authorization of the structure. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62-33.0051(5)(g). Construction debris may not be used for emergency protection. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62B-33.0051(5)(f). Construction debris is defined as "material resulting from the demolition of a structure" and does not "include such material which has been sorted, cleaned, and otherwise processed such that it meets the suitability criteria for armoring materials set forth in this rule chapter." Fla. Admin. Code R. 62B-33.002(15). On October 5, 1971, the Department of Natural Resources (DNR), which was later merged into the Department, issued to DOT Permit No. BBS 71-33 for the construction of a rock revetment on the south side of County Road 370 in the area that is the subject of the Amended NOV. See Department Ex. 2, ¶9. A Final Order issued by DNR on May 29, 1986, states in part that while the project was never constructed, "[s]ince 1971, DOT did place loose rock and rubble debris on several occasions in noncompliance to any engineering design and without construction." Id. However, a Department inspection in 1996 revealed that no debris was located within the area where the current revetment is built. See Finding of Fact 6, infra. On May 29, 1986, DNR issued to the County CCCL Permit No. FR-204 for the construction of a 1,500-foot rock revetment seaward of the established CCCL and adjacent to portions of County Road 370 abutting the Gulf of Mexico. See Department Ex. 2. The revetment was located approximately 350 feet east of DNR's [now Department] reference monument R-211 to approximately 150 feet west of DNR's reference monument R-213. Id. at ¶ 1. On November 7, 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the original revetment authorized in 1986 and extension of the eastern limits of the structure. The revetment is located approximately 540 feet west of Department reference monument R-212 to approximately 140 feet east of Department reference monument R-213. See Department Ex. 3. The permit did not authorize placement of any construction debris within the revetment. On February 5, 1996, the County certified that the revetment was constructed in compliance with the permit. See Department Ex. 4. A final site inspection performed by the Department revealed that no unauthorized construction debris or other material had been placed in the permitted revetment. See Department Ex. 5. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along County Road 370. As an emergency measure after the storm event, the County replaced rock boulders that had been displaced back into the rock revetment seaward of the CCCL. It also placed unauthorized concrete debris and other debris material within the footprint of the rock revetment seaward of the CCCL. The unauthorized debris material has never been removed. Such debris poses a potential safety hazard to the public. On September 11, 2006, the County submitted to the Department an application for a joint coastal permit, which would authorize a 2.9-mile beach and dune restoration project along a segment of the Alligator Point shoreline. In 2007, a Department site inspection (attended by County officials and its consultant) revealed the presence of concrete debris and other debris material stacked on top of and intermixed with the previously permitted rock revetment. The purpose of the site inspection was to have the County's consultant formulate a debris removal plan, which would be incorporated as a condition in the joint coastal permit and sovereign submerged lands authorization. An enforcement action was not initiated because the debris removal plan, if completed, would resolve the violation. On May 11, 2011, the County's application for a joint coastal permit was approved and Permit Number 0269516-001-JC was issued. See Department Ex. 6. Special Condition 5 of the permit gave the County specific instructions on how to remove the construction debris within the previously-permitted rock revetment and included a requirement that it be placed in an upland disposal site. Id. at p. 6 of 23. An attachment to the permit identified the debris and derelict structures to be removed. However, the County has never undertaken the beach re- nourishment project or completed any of the work relating to the debris removal plan. This is because the voters of the County rejected the funding mechanism for the project several years before the permit was issued. On January 9, 2012, the Department conducted an inspection of the site to document how much debris was in the 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. See Department Ex. 7. A NOV was issued after the inspection. On March 8, 2012, a follow-up inspection was conducted by the Department and County representatives. The conditions observed at that time were essentially the same as those present during the January inspection. During the March inspection, a County representative pointed out several pieces of concrete debris that he believed were the remains of an old swimming pool from an upland property that had been placed on top of the revetment after a storm event. Prior to that time, the County had taken no steps to remove this debris, and it had never notified the Department that concrete pool debris had been placed in the revetment, apparently by an unknown third party. An Amended NOV was issued on August 31, 2012, which added a Count II, relating to the area east of the permitted revetment, and identified the corrective action to be taken by the County for both Counts. The corrective action for Count I requires the County, within 60 days of the effective date of a final order in this proceeding, to remove all construction debris and other debris material, seaward of the CCCL, from and adjacent to the footprint of the previously permitted rock revetment. It further requires the County to promptly dispose of all debris at an appropriate disposal facility landward of the CCCL. If compliance with these conditions requires the County to remove the debris during the Atlantic hurricane season, the time frame to complete the removal activity shall be within 60 days after the end of that season. Except for a contention that it is not responsible for removing all of the debris in the revetment, the County does not dispute the charges in Count I. See Stip., ¶ 7.a. In an effort to limit its liability, the County points to language in a 1986 DNR Final Order, which states in part that "loose rock and rubble debris" was placed in the revetment footprint by DOT "on several occasions" in the 1970s. Department Ex. 2, ¶ 9. However, a Department inspection of the site in 1996 just after the structure was rebuilt determined that there was no unauthorized debris in the footprint of the permitted revetment. The results of that inspection were not credibly disputed. The County also contends that other debris may have been placed in or on top of the revetment by unknown third parties after various storm events in later years. But even if this is true, it is the responsibility of the property owner, in this case the County, to remove the debris. The County also seeks "equitable relief" on the ground it lacks the necessary finances to perform the corrective action. The County Director of Administrative Services stated that due to the recession, the property tax base has been cut in half (from $4.1 billion to $1.9 billion) between 2006 and 2011, essentially cutting ad valorem property taxes by 50 percent. The County further points out that the Federal Emergency Management Agency (FEMA) is not a source of funding to correct the violations. Several years ago, FEMA funding was available to the County on a one-time basis to either construct a bypass road for portions of Alligator Drive adjacent to the previously permitted rock revetment or to maintain the rock revetment. Based upon FEMA's recommendation, the County opted to build a bypass road, which is approximately 75 percent completed, with the remainder temporarily delayed due to pending condemnation litigation with an affected property owner. However, the County described the bypass road as being far less safe than County Road 370 because the bypass road has sharp turns, poor driving visibility, and a much smaller right-of-way (52 feet versus 80 to 100 feet for County Road 370). In any event, FEMA funding for performing revetment-related work adjacent to County Road 370 is no longer available. Finally, the County estimates that there are "a hundred [truck] loads of material to be removed from this area," and if the debris is removed, it will "reduce the volume of protection that [the road] currently [has]" and increase the risk of the road failing. The County suggests that even if the debris is removed, it has no money to then restore the structural integrity of the revetment. If that part of County Road 370 becomes unsafe or unusable, approximately 400 homes west of the revetment will lose the only paved hurricane evacuation route from the coastline, and emergency services may not be able to quickly access the area. As discussed in the Conclusions of Law, despite these unfortunate circumstances, the financial condition of the violator is not a consideration in formulating a corrective action plan. Count II Beginning in September 2000, and continuing until at least through July 2005, the County placed material, including granite rock boulders, rock, and debris material, in a location east of the previously permitted rock revetment, seaward of the CCCL. The granite rock boulders are permitted material taken from the rock revetment. A permit for a permanent rigid coastal armoring structure has never been obtained for the placement of the authorized material, and the debris material has never been removed. The construction activity is located to the east of the previously permitted rock revetment seaward of the CCCL approximately 140 feet east of Department reference monument R-213 to approximately 80 feet east of Department reference monument R-214. To address the violations in Count II, the County has agreed that within 60 days of the effective date of a final order in this case, it will submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department requirements. All work shall be completed prior to the expiration of the permit. If a complete application is not timely submitted, or the structure is not completed prior to the expiration of the permit, the County will remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order determining that the County is liable for the violations in Count I. As corrective action, within 60 days of the effective date of a final order in this proceeding, the County shall remove the existing construction debris and other material seaward of the CCCL from within the footprint of the previously permitted rock revetment and dispose of the material at an appropriate disposal facility landward of the CCCL. If compliance with the time period requires the County to complete activities during the Atlantic hurricane season, the time frame for completing the debris removal activities is 60 days after the end of the hurricane season. It is further RECOMMENDED that, based upon the parties' agreement at final hearing, the Department also determine that the County is liable for the violations in Count II. As corrective action, within 60 days of the effective date of this Order, the County shall submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department permitting rules and statutes. The County shall complete the permitted construction prior to the expiration of the permit. If the County does not submit a complete application within 60 days of entry of a final order, or does not construct the structure authorized by the permit prior to the expiration of the permit, the County shall remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan. DONE AND ENTERED this 29th day of January, 2013, 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 29th day of January, 2013.
