The Issue The issue is whether the Petition to Establish the Coastal Lake Community Development District should be granted pursuant to Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue Whether Respondent violated Section 112.011(1)(a), Florida Statutes, by terminating Petitioner's employment?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner was employed by Respondent from March 15, 1989, to June 5, 1997, the effective date of his termination. 1/ At the time of his termination, Petitioner occupied the position of Combined Control Board Relief Operator-Power Resources. In this position, at least twice a week, Petitioner monitored and operated the control board in the City of Lake Worth Power Plant (which provides power to the City of Lake Worth through steam generators). As Petitioner acknowledged during his testimony at hearing, this was a "critical job," and it was "very important" that he "be totally sober" and mentally alert while performing his job duties. On or about September 26, 1996, while he was still employed by Respondent, Petitioner was arrested by a City of Lake Worth police officer for possession of cocaine. The cocaine the police officer found in Petitioner's possession was in Petitioner's boot. Petitioner was on his way to work at the time of his arrest. Law enforcement authorities asked Petitioner to disclose the names of those who had sold him the cocaine, but Petitioner refused to do so. Lloyd Gibbs, Respondent's Power Resources Superintendent and Petitioner's supervisor, was made aware of Petitioner's arrest. On October 3, 1996, Mr. Gibbs delivered to Petitioner the following "Notification of Random Testing [for] Alcohol and Controlled Substances": Due to the events, which include[] your arrest September 26, 1996 and your statements given to me and the Lake Worth Police Department, and in accordance with Resolution 28-91 (City of Lake Worth Personnel Policy) Section 18, Alcohol and Substance Abuse, C3, Cit[y's] right to test for alcohol and controlled substance, 2/ you are hereby notified you will submit to blood and/or urine analysis in accordance with this policy (on a random bas[i]s until further notice from this office). The City of Lake Worth is a drug free work place. We [e]xpect our employees to perform their duties free from the effects of alcohol and substance abuse. In or around December of 1996, Petitioner submitted to a random drug test. The test revealed the presence of cocaine in his system. On February 5, 1997, Petitioner received the following letter from Respondent's personnel and risk manager, David Murphy: As a result of your positive drug screen and your previous agreement . . . with the City of Lake Worth, dated October 3, 1996, regarding use of illegal drugs, you are to be referred to the city's EAP for evaluation and possible treatment protocol as prescribed by the City Policy. In order for your employment to remain intact, (Combined Control Board Relief Operator-Power Resources) you will adhere to the below conditions. If you deviate in any way or test positive again, you will be immediately terminated. MANAGEMENT/UNION REFERRAL TO EAP Immediate enrollment with the EAP. To be verified by CFS; Authorize Release of Information & treatment plan information to this office; Strict adherence to treatment plan in full; You['re] placed on leave; Since you have no available time on the books, you are placed on Administrative Leave Without Pay, until you are cleared by the EAP, to return to work; Failure to comply with the EAP treatment plan will result in dismissal as being AMA (against medical advice). I have reviewed the possibility of any additional information surfacing that may be pertinent to this issue. Your Union representatives are aware of the above findings as being representative of the facts that we have gathered to date, based upon first hand knowledge. Your signature below, is your acknowledgment of receipt of this letter and agreement with the City to comply with the above conditions. Please return it to me within 5 days of receipt. Thank you. We wish you the best in your prescribed plan. After receiving Mr. Murphy's February 5, 1997, letter, Petitioner enrolled in a non-residential drug rehabilitation program offered by the Center for Family Services of Palm Beach County, Inc. (CFS). (He continued to work during the period of his rehabilitation.) Section 18C of the City of Lake Worth's Personnel Policy, which is contained in Resolution No. 28-91, provides as follows regarding the subjects of "[r]ehabilitation" and "[d]iscipline [p]ending [r]ehabilitation": 6. Rehabilitation. In the event that the results of the blood/alcohol test or second urine verification test are positive, the employee will, within ten (10) days thereafter, enter and remain in an alcohol/substance abuse program approved by the City until the administrator is able to state that the employee has been successfully rehabilitated. While in the program the employee will be allowed to return to work if the program administrator approves; if not, the employee may be placed on leave until the program administrator approves return to work, not to exceed six (6) months. If the employee is not rehabilitated, he or she may be disciplined. If the employee is rehabilitated, as determined by the program administrator, the employee shall be allowed to return to work without being disciplined. The employee may use accrued leave while in the rehabilitation program, or take leave without pay. If the employee fails to enter or complete the program, or fails to or cannot be rehabilitated, the employee shall be subject to appropriate discipline. . . . 8. Discipline Pending Rehabilitation. No employee shall be disciplined for alcohol/substance abuse if the employee enrolls and completes a rehabilitation program. This Section does not prevent the City from disciplining the employee for the consequences of the employee's alcohol/substance abuse (e.g. absenteeism) but rehabilitation shall be a factor in determining the severity of the discipline. By letter dated April 8, 1997, CFS informed Mr. Murphy that Petitioner had "successfully completed 3/ his treatment" program (which entailed meeting with a counselor on six separate occasions over a two-month period). By letter dated May 29, 1997, from Respondent's Utilities Director, Harvey Wildschuetz, which reads as follows, Petitioner was notified of the termination of his employment, effective June 5, 1997: This letter is to officially inform you that effective June 5, 1997, your employment as a Combined Control Room [Relief] Operator is being terminated. As you are aware, the City sets high standards for conduct, and it is regrettable that we must take this action. This disciplinary action is based on your violation of Resolution 28-91, Section[] 24.B, Types of Offenses, Group III Offenses, paragraphs 9 and 16. Any questions you have in regard[] to your separation from employment will be discussed at a Pre-Termination conference to be held at the Utilities Department Administrative Conference Room located at 1900 2nd Avenue North on June 5, 1997, at 9:00 a.m. At all times material to the instant case, Section 24 of Resolution No. 28-91 has provided, in pertinent part, as follows: DISCIPLINARY ACTIONS GENERAL It is the intent of the City that effective supervision and employee relations will avoid most matters which necessitate disciplinary action for violation of the rules, and disciplinary action for violation of the rules is NOT intended to restrict the rights of anyone but to insure the rights of all and secure cooperation and orderliness throughout the personnel system. The City recognizes the fact that each instance differs in many respects from somewhat similar situations. The City retains the right to treat each occurrence on an individual basis and without creating a precedent for other cases which may arise in the future. The following rules and regulations are not to be construed as a limitation upon the retained rights of the City. The rules and regulations provide recommended standard penalties to apply for specific offenses. This means that a more severe penalty may be issued than that which appears in the standard procedure if it is felt necessary. Offenses requiring disciplinary action are divided into three types to reflect degrees of severity of offenses. In each group for each rule, consideration will be given to the severity of the offense, the cost involved, the time interval between violations, the length and quality of service records, and the ability of the employee concerned. In each case where the penalty is modified from the recommended standard penalties, the reasons for such modifications will be noted in writing. In addition to the general types of offenses listed below, infractions of written department rules and regulations will subject the employee to disciplinary action. In all cases, the department head shall notify the employee of the action taken and a copy of such notice will be sent to the Personnel Director or designee for placement in the employee's personnel folder. TYPES OF OFFENSES The three (3) groups of offenses and a guide for standard penalties recommended are as follows: . . . . GROUP III OFFENSE FIRST OFFENSE- Discharge . . . . 9. Immoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his/her job, fellow workers, reputation or goodwill in the community. . . . 16. Conviction or guilt of a felony, or a misdemeanor of the first degree which would tend to affect the employee's relationship to his/her job, either on or off job. . . . Pursuant to Section 26 of Resolution No. 28-91, which at all times material to the instant case has provided as follows, all permanent City of Lake Worth employees are entitled to a pre-termination hearing prior to the effective date of their termination: In accordance with law, all permanent employees must be given a pre-termination hearing. The hearing must be given prior to the effective termination date to provide the employee with an opportunity to discuss the specific allegations prom[p]ting the proposed termination with the department head involved. Upon full and fair consideration of all facts and information presented at the hearing, the City Manager or designee shall notify the employee in writing with respect to his or her decision regarding termination. Such a pre-termination hearing was held for Petitioner's benefit. Following this pre-termination hearing, Mr. Wildschuetz sent Petitioner the following letter, dated June 5, 1997: After consideration of all information presented at the Pre-Termination Hearing, your employment with the City of Lake Worth is hereby terminated effective June 5, 1997. You acknowledged that you were in possession of illegal drugs and have violated the City's personnel policies. Please return all materials, books, uniforms, operating keys and gate cards currently in your possession to the Assistant Power Resources Superintendent, Shannon Bates, by 5:00 p.m., Friday, June 6, 1997. Subsequent to the termination of his employment, Petitioner was formally charged by the State Attorney's Office with possession of cocaine. Pursuant to a plea agreement, Petitioner entered a pretrial diversion program (the Prosecutor's Alternative Drug Diversion program, or PADD), which he successfully completed. As a result, he was not adjudicated guilty of the crime with which he had been charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the "agency" in this case (the City of Lake Worth) dismissing Respondent's complaint that the termination of his employment by the City constituted a violation of Section 112.011(1)(a), Florida Statutes. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of October, 1999.
Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Henry I. Whatley, owner of Hank's Septic Tank Service, was the holder of a permit to operate a septic tank cleaning service issued by the Polk County Health Unit of DHRS. DHRS was the agency charged with regulating operation by the Petitioner. In early June, 1987, Richard Lee Coleman, a Commissioner with the Winter Haven Lake Region Boat Course District, along with members of the press, was involved in a boat-borne examination of several of the northern lakes in the lake chain which made up a part of the District's jurisdiction. As the party was leaving Lake May, going south on the canal joining Lake May with Lake Shipp, Mr. Coleman noticed a white liquid storage truck parked on property abutting the canal, property identified as owned by Petitioner. At the back of the truck, a young man, later identified as Petitioner's son, had opened a valve allowing a 4 to 6 inch stream of grey-brown material pour out from the truck to the ground. When the young man saw the boat coming, he immediately stopped the dumping and started to drive off. Another Commissioner in the group yelled at him to stop, which he did. The Coleman party pulled its boat over to the bulkhead and received permission from Petitioner's son to come on the property. While the group was talking with the young man, Mr. Coleman walked over to the dump site, a filled area which sloped off toward a swampy wetland to the east which constitutes an extension of the lake system. He observed the effluent which had come from the truck draining across the area into the swamp. Mixed in with the effluent were such solid materials as tampon containers and lumps of waste material which, from the smell, was from septic tanks. Mr. Coleman took a sample of the effluent materiel in a sample bottle which had been provided to him by the health department. Just as Mr. Coleman finished taking the sample, Mr. Whatley came up to the group and in the course of the ensuing conversation, indicated he had been dumping effluent there for 10 years without problem and felt there was no harm in it. Mr. Coleman did not want to discuss the matter with Petitioner and left the area. In the company of a reporter who was on the trip with him, Mr. Coleman took the sample to the health department where he left part for analysis, and took the remainder to the Winter Haven water department where the chemist, Ms. Dennis, agreed to analyze it for systems the health department analyst could not look for. A week later, on June 13, 1988, Officer Quarles was operating the police patrol boat in the area when he received a call that a truck was dumping sewage into the canal. When he got to the purported site, he did not see a truck at or near the canal, but saw one about 100 feet east of the canal, parked on an incline with the rear hatch open. On top of the truck, up near the front, he saw Mr. Whatley with a hose, running water into the top hatch. A powerful smelling pile of sand was on the ground outside the back hatch where the water was coming out. This was the same odor of sewage he detected from the water when he entered the canal from Lake May. Officer Quarles called for someone to bring him a sample container into which he placed a sample of the sludge from the center of the pile. Quarles asked Petitioner to stop washing out the truck and Petitioner complied. The sludge at the back of the truck was up to twelve inches deep in parts but the water it contained did not seem to be running off the site. Instead, it was going into the ground. The sludge sample gathered by Mr. Quarles was taken to the Winter Haven health department where it was analyzed for fecal coliform bacteria and fecal streptococci. In October, 1987, Petitioner pleaded no contest in Polk County Court to a charge of depositing a deleterious substance in a lake and was fined $106.00. After the entry of the Court's order, the Department revoked Petitioner's permit to operate a septic tank cleaning service and in place thereof, issued him an interim permit under which he could operate until the expiration of his period of probation. When he submitted his application for a new permit, on December 23, 1987, it was denied because his activities were considered to constitute a pollution hazard. Petitioner does not deny either he or his son was washing out the truck on the dates and at the sites in question. He had been having difficulty stopping the truck because of the heavy buildup of sand in the tank which had to be removed so the truck could pass inspection. As a result, he was cleaning out the truck on his own property, a four acre piece of land which contains its own small lake and which is bordered on one side by 900 feet of the canal between Lake May and Lake Shipp. He was not arrested on either occasion, but several months after the last incident, he was notified to appear in County Court. He was advised by his attorney that he would be fined $106.00 and would be required to do some community service and, thereafter, upon the advice of counsel, pleaded no contest to a charge of illegal dumping of septic tank seepage into the lake chain in the county. He contends that he was told by both the judge and his lawyer that his license to operate his business would not be affected by his plea. As a result of the refusal to renew his permit, he has been relegated to doing repair work in his own name and has been able to continue to service his accounts with a truck borrowed from a competitor. He contends that if he does not get his own permit, he will be put out of business and will have to dispose of his land, the end sought by his wife who is in the process of divorcing him and who wants the land. Both Lake May and Lake Shipp consistently have the highest bacteria count in the chain. Both are used for fishing, water skiing, and other recreational purposes and the bacteria count, checked periodically, usually twice a year, is "alarmingly" high. Admittedly, there are sources other than Petitioner's property which cause bacterial pollution to the lakes, such as storm water drains and industry. Based on tests run in the area, however, it does not appear the industrial waste contains human waste bacteria. Though Petitioner was not dumping directly into the canal, the effluent from his dump was observed to run into the swamp which carries into the lake system. The water samples taken to the health department in this case were initially reviewed by Mr. Tucker, a biological scientist, who routinely chemically tests water from the lakes using the Environmental Protection Agency approved "most probable number" test. He checks for total coliform bacteria, (either animal or vegetable), fecal coliform bacteria, (animal), and fecal streptococci which can determine what animal provided the contamination. The lakes involved here are usually very low in fecal coliform bacteria, showing an average of less than 16 - 200 colonies per ml of water. Fecal streptococci count is usually in the low teens. With these levels, the water in the chain is usually pretty good except for the few trouble spots such as the storm drains and industrial inflows described above. The tests he ran on the water sample submitted by Mr. Coleman showed extremely high bacteria count. The concentration was so high he was unable to distinguish individual colonies even at a dilution rate of 1 to 10,000. The ample, which at this level was off the scale, showed a solid mass of bacteria. The streptococcus count was also well above what normal lake water would show. The sample obtained by Mr. Quarles running water through the sand was also so high as to be off the scale. Ordinarily an incubation period of 48 hours is required to get a reading on tests such as these. In this case, Mr. Tucker got a reading after only 8 hours even using a different method for analysis than that used on the Coleman sample. The sample's bacteria count was so concentrated, a comparison with normal lake water was impossible. Ordinarily, introduction of bacteria like this in the concentrations shown here, could destroy the lake and produce in humans anything from scarlet fever to simple diarrhea. Ms. Dennis, the water plant chemist who conducted the additional tests on the water sample brought in by Mr. Coleman, evaluated chemical oxygen demand, (COD), biological oxygen demand, (BOD), and the PH factor which, in this case, was neutral. The COD test, which shows how much oxygen is used by chemical activity caused by the presence of chemicals or organics, normally averages 430 in raw sewage. Here, the sample showed 11,552. The BOD test, which shows how much oxygen is being used by organisms in the water averages 150 - 250. Here, the sample showed 1400. The higher the number on these two tests, the greater the degree of contamination. Ms. Dennis also ran other tests. Ammonia in the water shows what the microorganisms use for food. Whereas the average is usually 10 - 40 ppm in raw sewage, the sample in question showed 41. Organic nitrogen is usually 1 - 10 ppm in raw sewage. Here it was 200 ppm. Nitrate levels were not significantly above average. Taken together, the tests run by Ms. Dennis on the Coleman samples showed counts much higher than the counts for raw sewage generally in Winter Haven. Mr. Whatley claims he has been in business for 19 years without having any difficulty with the health department. He denies any health hazard, claiming that any harmful bacteria in the waste are killed by the many household chemicals which end up in the septic tank with the waste. He holds himself out as an example, claiming he has worked with this substance for years and has never been made sick by it. Chemical analysis, however, is far more significant and convincing evidence of danger than Mr. Whatley's health and clearly indicates that bacteria in the waste were alive and active.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that Petitioner's application for a permit to operate a septic tank cleaning service be denied. RECOMMENDED this 29th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of July, 1988. COPIES FURNISHED: Henry I. Whatley 127 Strain Blvd. Lakeland, Florida 33801 Edward Haman, Esquire HRS District VI Legal Counsel W. T. Edwards Facility 4000 E. Buffalo Avenue Tampa, Florida 33614 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The information-gathering hearing was convened for the purpose of determining the impact of Lake County’s Order denying a rezoning application (“Rezoning”) for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23 (“PUD”), whether the denial of the rezoning application was unreasonable or unfairly burdened the real property subject to Petitioner’s rezoning application, and whether some modification of Petitioner’s proposed use of the property or adjustment to the denial of the rezoning application could be reached.
Conclusions For Petitioner: Cecelia Bonifay, Esquire Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 For Respondent: David Langley, Esquire Lake County Attorney’s Office 315 West Main Street Tavares, Florida 32778 A number of non-party participants appeared at the Zoom conference and were permitted to offer documents and testimony pursuant to limitations established in the November 4, 2021, Notice of Hearing Before a Special Magistrate.
Recommendation Based upon the foregoing Stipulated Findings, the Findings Adduced at Hearing, and the Public Comment, the undersigned concludes that the proposed Rezoning satisfies the requirements of the Lake County Comprehensive Plan and Land Development Code, that there is no reason related to transportation safety to deny the Rezoning, and that the denial of the Rezoning, under the circumstances presented here, is unreasonable or unfairly burdens use of the Property. Therefore, it is recommended that the Lake County Board of County Commissioners approve the application for the Lake Nellie Crossing Planned Unit Development, Lake County Case No. RZ-20-39-23, subject to the conditions previously agreed upon by Lake Nellie, and the following: Stormwater facilities shall be vegetated with native species where possible. Sidewalks shall be constructed within the Project and along the Project’s frontage on Lakeshore Drive and Royal Vista Avenue. In addition to the left turn lane for southbound traffic, Lake Nellie and Lake County shall examine the feasibility of a right turn deceleration lane into the Project for northbound traffic on Lakeshore Drive. If determined to advance safety on Lakeshore Drive, the right turn lane shall meet Florida Department of Transportation specifications for design and length for a 40 MPH road. Land necessary for the construction of a right turn deceleration lane shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. If Lake County determines in the future that a roundabout at the entrance to the Project would facilitate traffic flow and enhance safety, Lake Nellie, or its successor homeowners’ association or maintenance entity, shall donate land within its ownership and control to Lake County for use as right- of-way for the roundabout. That donation shall not be deducted from the open space calculation qualifying Lake Nellie for 102 units under the one dwelling unit per acre/50 percent open space requirement. DONE AND ENTERED this 18th day of January, 2022, in Tallahassee, Leon County, Florida. S E. GARY EARLY Special Magistrate 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2022. COPIES FURNISHED: Melanie N. Marsh, Esquire Lake County Attorney's Office Post Office Box 7800 Tavares, Florida 32778 Thu Pham, Esquire Akerman LLP 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 David Langley, Esquire Lake County Attorney Office 315 West Main Street Tavares, Florida 32778 Jennifer Barker, Interim County Manager Lake County, Florida 315 West Main Street Tavares, Florida 32778 Cecelia Bonifay, Esquire Akerman Senterfitt 420 South Orange Avenue, Suite 1200 Orlando, Florida 32801 Nicole Blumenauer, Esquire Lake County Attorney's Office 315 West Main Street Tavares, Florida 32778 Sean M. Parks, Chairman Board of County Commissioners Lake County, Florida 315 West Main Street Tavares, Florida 32778
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
