The Issue The issues are whether Respondents constructed a dock and walkway on state lands in Collier County, Florida, without obtaining authorization, and if so, whether an administrative fine should be imposed for this action; and whether certain corrective action should be taken by Respondents, as described in Petitioner's First Amended Notice of Violation, Orders for Corrective Action, and Administrative Fine Assessment (First Amended NOV) filed on March 24, 2015.
Findings Of Fact The Board is responsible for overseeing state-owned lands and ensuring that they are managed in trust for the citizens of the state. The Department of Environmental Protection (Department) performs all staff duties and functions related to the administration of state lands. See § 253.002(1), Fla. Stat. Pursuant to that authority, the Department has prosecuted this action on behalf of the Board. Since December 1, 2005, Respondents, Margarita Quintero and Thomas Patas, as tenants in common, have owned property at 1899 Sheffield Avenue, Marco Island, Florida. See Bd. Ex. G. The property is more specifically identified as Parcel ID No. 57200400000, Section 16, Township 52 South, Range 26 East. A narrow wooden walkway extends in a south-southeasterly direction from Respondents' property to a small terminal platform in Barfield Bay, a waterbody that lies south of Respondents' lot. See Bd. Ex. C. The Board owns uplands located in Section 16, Township 52 South, Range 26 East, and those sovereign submerged lands of Barfield Bay lying adjacent to Section 16. Those lands are described as follows: Lots 22 and 23, Block 149 and Lot 10, Block 150, and that portion of Dogwood Drive lying between Lots 22 and 23 and Lot 10, of the subdivision of Marco Beach Unit Five recorded in Plat Book 6, Pages 39 through 46, Public Records of Collier County. See Bd. Ex. G-2. Most of the uplands were deeded to the state in 1985 pursuant to a settlement agreement with The Deltona Corporation, while a small sliver of land was deeded to the state in September 2013. Respondents' property is located adjacent to these state-owned lands. On March 28, 2012, the Department received a complaint from a third party that the walkway and dock had been constructed adjacent to Respondents' property. In a letter dated April 19, 2012, the Department warned Respondents of "possible violations of the law." See Bd. Ex. J. The letter stated that the Department believed Respondents were responsible for a dock being installed on state-owned lands and mangroves had been altered for the installation of the dock. The letter also noted that Respondents' property did not appear to be riparian. Respondents were requested to contact the Department within 15 days to arrange a meeting to discuss these issues. Respondents did not reply to the letter or meet with Department representatives. On June 14, 2012, the Department recorded a Notice of Unauthorized Structure (NOUS) in the public records of Collier County. See Bd. Ex. H. The NOUS was intended to serve as notice to prospective purchasers and other interested persons that certain unauthorized structures were located on state lands adjacent to Respondents' property. There is no evidence that Respondents responded in any manner to the NOUS. On December 10, 2012, a Department Environmental Specialist III conducted an inspection of the walkway and dock. He observed a two-foot wide access walkway extending 335 feet from Respondents' property, which terminated at a 63-square-foot terminal platform (dock) in Barfield Bay. The total dock size is 733 square feet, while the walkway encompasses around 670 square feet. See Bd. Ex. A. A follow-up inspection on January 12, 2015, revealed that the structure had not been removed. See Bd. Ex. K. Property records and a coastal engineering site survey confirm that the structure passes over state-owned uplands before crossing the Mean High Water Line and onto sovereign submerged lands in Barfield Bay. See Bd. Ex. C. There is no evidence that Respondents obtained authorization to construct the walkway and dock. To determine when the dock and walkway were constructed, the Department reviewed aerial images of the property taken in 2004, 2006, 2009, and 2012. See Bd. Ex. B. The walkway and dock did not appear until the 2012 image. This confirms that Respondents constructed the walkway and dock after they purchased their property in December 2005. The First Amended NOV seeks to impose an administrative fine on each Respondent in the amount of $2,500.00 for unauthorized use of sovereign submerged land. If the walkway and dock are removed within 20 days, no fine will be imposed. For every day after the 20 days that removal does not occur, the Board intends to impose a fine accruing at a rate of $10,000.00 per day. As corrective action, the Board proposes generally that Respondents remove the walkway and dock within 20 days from the date of a Final Order; that during such removal steps be taken to ensure that no further impacts to mangroves, wetlands, and bay bottom occur; that water quality be protected during this process; and that the material be disposed of in an appropriate upland location.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order sustaining the charges in the First Amended NOV. Within 20 days of the entry of a final order, each Respondent shall pay $2,500.00 to the Department. Payments shall be made by cashier's check or money order payable to the "Internal Improvement Trust Fund." All payments shall be sent to the Department of Environmental Protection, South District, SLERP Section, Post Office Box 2549, Fort Myers, Florida 33902-2549. If Respondents complete removal of the walkway structure and dock from Board property in accordance with the corrective action described in paragraph 19, Respondents do not have to pay the fines. If Respondents fail to complete removal of the dock and walkway structure in accordance with the corrective action, the fine will begin accruing at a rate of $10,000.00 per day. DONE AND ENTERED this 5th day of May, 2015, 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 5th day of May, 2015.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order in this proceeding relinquishing jurisdiction to the Department of Community Affairs (Department or DCA) for final action. A copy of the Order is attached to this Final Order as Exhibit A. Filed July 15, 2011 12:57 PM Division of Administrative Hearings FINAL ORDER NO. DCA 11-GM-139
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-139 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by the manner indicated to each of the persons listed below on this [5 hoy of 2011. \ “ath bd bn fe Paula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Mark Scruby, Esquire Clay County Attorney Lynette Norr, Esquire Post Office Box 1366 Assistant General Counsel Green Cove Springs, Florida Department of Community Affairs 32043 2555 Shumard Oak Boulevard Mark .Scruby€co.clay.fl.us Tallahassee, Florida 32399-2100 Lynette .Norr@dca.state.fl.us T.R. Hainline, Jr., Esquire Paige H. Johnston, Esquire 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 thainline@rtlaw.com pjyohnston@rtlaw.com
Conclusions On October 7, 2011, an Administrative Law Judge (“ALI ”) of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9. 030()(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES, YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-168 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this Laas of March 2012. By U.S. Mail: James E. White, Esq. Florida Bar No. 679461 WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L. Attorneys for Respondent 200 E. Broward Blvd., Suite 1900 Fort Lauderdale, FL 33301 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By Filing with DOAH: The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison St., MSC 110 Tallahassee, Florida 32399-4128
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(c) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-231 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned designated Agency Clerk, and that true and correct copies have been furnished to the persons listed below in the manner described, on this ay of June, 2009. U.S. Mail: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Robert Quintin Williams Williams, Smith & Summers 380 West Alfred Street Tavares, Florida 32778-3206 Hand Delivery Matthew Davis, Esq. Assistant General Counsel Department of Community Affairs Agency Clerk LOB ge Viren Ford
Conclusions This. cause is before the Department of Community Affairs on an Order Closing File, a copy of which is appended hereto as Exhibit A. On June 22, 2009, the Department published its cumulative Notice of Intent to find the Hernando County comprehensive plan amendment adopted by Ordinance No. 2007-24 on December 12, 2007, and the remedial amendments adopted by Ordinance 2009-03 on May 12, 2009, in compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, Ch. 163, Part II, Florida Statutes (the “Act”). On July 15, 2009, pursuant to Section 163.3184(9), Florida Statutes, the Department forwarded Brooksville Quarry LLC’s Petition for Administrative Hearing to the Division of Administrative Hearings. The case was assigned DOAH case number FINAL ORDER No. DCA09-GM-289 09-3746GM. On August 3, 2009, a Notice of Hearing was entered for September 1 and 2, 2009. On August 10, 2009, Brooksville Quarry, LLC, filed a Notice of Voluntary Dismissal without Prejudice. There are no other Petitioners in this case, and the time has expired for filing petitions for hearing. Therefore, no disputed issues remain to be resolved. The Florida Supreme Court held that “[a] case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So. 2d 211, 212 (Fla. 1991). A moot case generally will be dismissed. Id.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1)®) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD. OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER No. DCA09-GM-289 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to, each of the persons listed below on this day of , 2009. Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Linda Loomis Shelley, Esquire Karen Brodeen, Esquire Jacob D. Varn, Esquire Fowler White Boggs PA PO Box 11240 Tallahassee, FL 32302 Geoffrey Kirk, Esquire Assistant County Attorney Hernando County 20 North Main Street, Suite 462 Brooksville, Florida 34601-2850 By Hand Delivery Lynette Norr Assistant General. Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, FL 32399-2100
