The Issue The issues for determination at final hearing were (1) whether Petitioner's coastal construction Permit No. 86-155PB, authorizing Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Palm Beach County, Florida, should be extended under Special Permit Condition 10 of the Permit and (2) whether the experimental reef structure should be removed pursuant to Special Permit Conditions 3 and 12 of the Permit.
Findings Of Fact On April 6, 1987, American Coastal Engineering, on behalf of Willis H. DuPont (Petitioner) and Florida Atlantic University's Department of Ocean Engineering, was granted coastal construction Permit NO. 86-155PB 3/ (Permit) by the Department of Natural Resources (Respondent). 4/ The Permit authorized Petitioner to construct and temporarily maintain an experimental reef structure seaward of the DuPont residence in West Palm Beach, Florida. The experimental reef structure, referred to as a prefabricated erosion prevention reef (PEP reef), is a 550 foot submerged breakwater which was constructed using prefabricated concrete segments, placed end-to-end underwater in the nearshore area. The purpose of the PEP reef is to reduce erosion of the beach landward of the structure. The PEP reef was installed on May 5, 1988. Special conditions were placed on the Permit, to which Petitioner agreed. The special conditions in pertinent part provide: The permittee shall adjust, alter or remove any structure or other physical evidence of the work or activity permitted, as directed by the Executive Director, if in the opinion of the Executive Director, the structure, work or activity in question results in damage to surrounding property or otherwise proves to be undersirable or becomes unnecessary. Adjustment, alteration, or removal required under this provision, shall be accomplished by the permittee at no cost to the State of Florida. * * * 10. The proposed submerged breakwater shall be removed within two years following installation of the experimental structure unless determined by the staff to remain in place for an extended period of time. This determination shall be based on a staff evaluation of the monitoring data, existing statutory regulations, and the feasibility of the project in concurrence with the beach management plan at that time. The experimental structure shall only remain in place after two years upon written approval from the Executive Director indicating an extension has been granted. * * * 12. The Executive Director may order removal of the experimental structure as soon as the shoreline along any portion of the area required to be nourished under Special Permit Condition 6 erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location within the area to be monitored. Petitioner requested an extension of the Permit. On July 10, 1991, Respondent issued a final order denying an extension of the Permit, pursuant to Special Permit Condition 10, and directing the Petitioner to remove the PEP reef pursuant to Special Permit Conditions 3 and 12. An extension of the Permit beyond the two years following installation of the PEP reef, according to Special Permit Condition 10, is based upon three factors: (1) an evaluation by Respondent's staff of monitoring data gathered by Petitioner, (2) statutory regulations existing at the time of the extension request, and (3) the feasibility of the project in concurrence with the beach management plan existing at the time of the extension request. Although Petitioner's monitoring data addressed the question whether the PEP reef was performing its function, it did not address existing statutory regulations or the project's feasibility in concurrence with the current beach management plan. 5/ Petitioner's monitoring data was collected over a two-year period with surveys being performed through March 1990: March 1988 (preconstruction), May 1988 (post-construction), August 1988, December 1988, February 1989, April 1989, July 1989, November 1989, and March 1990. The data was collected along 17 profile stations: seven stations were located within or immediately adjacent to the boundaries of the PEP reef, and five to the north and five to the south of the PEP reef. The data indicated that the PEP reef was an experiment and approved by Respondent as an experiment. As a conclusion, Petitioner indicates that the PEP reef is functioning for the purpose it was designed in that it is providing a benefit to the beach. Respondent disagreed with Petitioner's conclusion. For one, Respondent disagreed with the method of analysis used by Petitioner to analyze the data because Petitioner's analysis failed to filter out seasonal effects. This procedure brought into play the first of the three factors in Special Permit Condition 10 which was used for denial of the Permit extension. Petitioner's monitoring data was utilized and analyzed by Respondent. Using the data gathered, Respondent created profile plots which are cross sectional depictions of the shoreline profiles and which displayed changes to the shoreline occurring during the survey period. Respondent used a shoreline change analysis in determining the PEP reef's effect on the shoreline in its vicinity. The analysis focused on the net change in the shoreline, i.e., the net change in the location of the mean high water line, factoring out the seasonal variations which occur along the coast by comparing profile plots from the same time of year taken during the two-year monitoring period. The shoreline change analysis indicated that in the vicinity of the PEP reef the shoreline showed irregular periods of both accretion and erosion. However, the shoreline did not reflect the typical pattern that was expected with a functioning breakwater. To the contrary, the irregular periods of accretion and erosion and the irregular configuration of the shoreline indicated that factors other than the PEP reef were affecting the shoreline. One such intervening factor was attributed to the large number of existing shoreline structures called groins which are scattered throughout the area. Groins are structures intended to stabilize the shoreline by blocking the down drift movement of sand, thereby altering the natural coastal processes. The monitoring data shows that, in terms of accretion or erosion, the PEP reef produced no recognizable influence on the shoreline in its vicinity. As to the second factor in Special Permit Condition 10, at the time the Permit was granted in 1988, no regulations specifically applicable to experimental structures existed. However, in 1989 a provision specifically addressing the permitting of experimental structures became law. /6 The provision provides that the "intent" of the Florida Legislature is to "encourage the development of new and innovative methods for dealing with the coastal shoreline erosion problem," and that, in authorizing the "construction of pilot projects using alternative coastal shoreline erosion control methods," the Respondent must determine, among other things, that "the proposed project site is properly suited for analysis of the results of the proposed activity." Groins in the PEP reef area alter the natural coastal processes and, therefore, play a significant role in the analysis of the shoreline processes. The effect of the groins affected the Respondent's ability to determine the effectiveness of the experimental structure. As a result, the Respondent was unable to make a determination in accordance with the legislative mandate. As to the third factor in Special Permit Condition 10, Petitioner presented no evidence addressing this factor. Petitioner has failed to show that the experimental structure, the PEP reef, has satisfied Special Permit Condition 10. It has failed to show that the intended purpose of the PEP reef has been accomplished, i.e., that the PEP reef is effective or beneficial. In denying Petitioner's request for an extension of the Permit, Respondent directed removal of the PEP reef pursuant to Special Permit Conditions 3 and 12. Special Permit Condition 3 provides for removal, alteration or adjustment of the PEP reef if it "proves to be undersirable or becomes unnecessary." The construction of the PEP reef consisted of, among other things, the placing of individual reef units end-to-end. To alert boaters to the location of the PEP reef, a buoy was placed at each end of the structure. The stability of the PEP reef is questionable. In 1989 a storm dislodged the individual units. In an effort to prevent sliding, Petitioner attempted to realign the units to their original position and added more weight to the units. Despite Petitioner's efforts to stabilize the structure, the PEP reef has experienced continued movement. Furthermore, because of the continued movement, boaters' safety would be compromised in that the buoys would be ineffective in warning them of the location of any units which may be dislodged. Also, the additional weight to the units could cause the individual units to settle, potentially affecting the performance of the PEP reef, and could induce erosional scour around the structure itself. Special Permit Condition 12 provides for removal when "the shoreline along any portion of the area required to be nourished . . . erodes up to or landward of the pre-nourished beach profile indicating a complete loss of the nourished beach material from that location and accretion at another location." The shoreline analysis showed that the shoreline in many portions of the nourished area eroded landward of the pre-nourished beach profile. The mean high water line had positioned landward of its pre-project location. Petitioner has failed to show that the PEP reef does not fall within the conditions of Special Permit Conditions 3 and 12. Federally protected and endangered marine species have attached themselves to and/or now reside in the PEP reef, complicating the removal of the PEP reef. In order not to disturb or disrupt this marine life, Respondent has expressed a desire in relocating the structure to a position further offshore.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources 7/ enter a final order DENYING an extension of Permit No. 86-155PB. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of April 1994. ERROL H. POWELL 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 21st day of April 1994.
The Issue Whether STOP and the County have standing to challenge the issuance of the Modification? Whether the Department should issue the Modification as authorized in Permit No. BO-612 M1?
Findings Of Fact The Sand Mound The Sand Mound is located entirely on the property of the Applicants in the City of Fort Lauderdale on the southern portion of the city's beach. Oval shaped, it is approximately 176 feet long in a north-south direction parallel to the shore (shore-parallel direction) and 140 feet wide in an east-west direction perpendicular to the shore (shore-normal direction). The Sand Mound's peak at 13 feet NAVD rises between five-to-six feet above the surface of the beach. Gradually sloped, it supports approximately 12,000 square feet of mixed vegetation of varying density. The Sand Mound is an oddity. The width of the beach on the property of The Mayan Beach Club seaward (to the east) of the Sand Mound is approximately 300 feet. The width of the beach lying upland of the Sand Mound (to the west and landward) is approximately 400 feet, a distance of a third or so greater than the beach seaward of the Sand Mound. Unlike a dune, therefore, the Sand Mound lies seaward of an extensive expanse of upland beach. There are no dunes, moreover, in the immediate vicinity of the Sand Mound. The closest dune is several hundred feet to the south. North of the Sand Mound, the closest dune is approximately 800 feet away. Over-sized, recycled tractor tires had been deposited offshore of The Mayan Beach Club property years ago in an unsuccessful government attempt to create an offshore reef. Although not proven, the suggestion was made by the Applicants that the Sand Mound formed as the result of the tires that had washed ashore or ended up on the beach through the beach's advancement due to sand accretion. The suggestion was not disputed by the other parties. It is the only explanation offered by any of the parties for the Sand Mound's isolation from other dunes and its peculiar location seaward of an extensive expanse of upland beach. The Sand Mound's lack of "alongshore continuity" means it is not a "primary dune." It is not a "frontal dune" because there is no "interdunal trough" between it and a primary dune. See Fla. Admin. Code R. 62B-33.002(17)(b). The Sand Mound is not a "significant dune" because it does not have "sufficient height and configuration or vegetation to offer protective value." See Fla. Admin. Code R. 62B-33.002(17)(a). In a major storm event, the Sand Mound would be unable to hold back storm surge. Water would flow over the Sand Mound or flank it so as to move around it. Despite the Department's reference to it as a "dune" in the Permit, the Modification and elsewhere, the Sand Mound is not a dune. It bears similarity to a dune in that is a mound of loose, sand-sized sediment deposited by natural or artificial mechanism which is bare or covered with vegetation and is subject to fluctuations in configuration and location. See Fla. Admin. Code R. 62B-33.002(17). Unlike a dune, however, it is seaward of an extensive expanse of beach. It is not "lying upland of the beach," see id., a characteristic of a dune, and, therefore, it is not a dune.3/ See id. The Permit and the Modification In December 2007, The Mayan Beach Club applied for a permit to reduce the Sand Mound (which it called a "berm") to existing beach level. In the application cover letter, The Mayan Beach Club's manager expressed "the opinion that a large tractor tire was washed onto shore, and never removed, thus causing the berm to evolve." Respondents' Ex. 4, Cover Letter. The cover letter also expressed a simple purpose: "to have the berm leveled to match up with all of the surrounding beaches." In mid-2008, Ocean Lane Villas, Inc., put in writing its support of the efforts to remove the Sand Mound and gave its permission to arrange for removal of the portion of it on Ocean Land Villas, Inc.'s property. The Department issued the Permit on October 2, 2009. But it did not authorize a leveling of the Sand Mound, as requested. The Permit contains a "Project Description" that opens with the caption "Dune Restoration." See Respondents' Ex. 27. The permitted activity is both excavation and restoration between approximately 395 feet and 535 feet seaward of the control line: A +13.0-foot (NAVD) dune feature is to be reduced to +10.0 feet (NAVD), with up to 1,442 cubic yards of excavated material to be spread adjacent to the feature and to construct a second dune feature (approximately 440 cubic yards) located to the north. Excavation and placement areas are to be planted with native salt-tolerant beach and dune vegetation. Id. The Permit authorization of a three-foot reduction in the Sand Mound allows about half of the Sand Mound's five to six-foot elevation above the beach surface to be reduced so that it would have a two to three feet elevation above grade. In January 2011, Coastal Systems International, Inc., submitted an application for a modification of the Permit. The application was received by the Department's Bureau of Beaches and Shores on January 18, 2011. The application proposed that the Sand Mound be removed in its entirety "restoring grade to match the typical conditions of the beach in the area." Respondents' Ex. 33, p. 2. The application's cover letter described the Sand Mound as "an anomaly, uniquely located more than 400 feet east of the landward edge of the beach." Id. The Modification application provided more compelling reasons for the need to remove the Sand Mound beyond the desire of The Mayan Beach Club as expressed in the Permit application to have its beach match the beach in the area. In addition to the contention that the Sand Mound had negative impacts to sea turtles, the cover letter asserted that it "obstructs resident views of the ocean . . . and is an 'attractive nuisance' encouraging trespass onto private property and trash accumulation, and resulting in negative impacts to the Permittee's property values and security." Id. On September 14, 2011, the Department issued the Modification. Its Project Description is markedly different from the Permit's. Rather than "Dune Restoration," the Project Description in the Modification is "Dune Redistribution." Instead of excavation and restoration, the Modified Project, as applied for, is one for "Removal": Dune Redistribution: Removal: Removal of the existing vegetated sand mound[4/] located approximately 514 feet seaward of the control line and redistribute approximately 1,730 cubic yards of the sand across the property. The mound is approximately 140 feet in the general shore- normal direction by 176 feet in the general shore-parallel direction. The removed sand is to be distributed between the Seasonal High Water Line and the western edge of the existing sandy beach to a maximum distance of 536 feet seaward of the control line. Id. at p. 2. Since all of the excavated sand will remain on the beach seaward of the CCCL, there will be no net excavation of in- situ sand or soil seaward of the CCCL. In sum, the primary effect of the Modification is to change the Permit from one that allows the Sand Mound's elevation to be reduced by three feet, to one that removes the Sand Mound in its entirety. The Modification calls for distribution of the excavated sand on the beach, but the Modification, unlike the Permit, calls for no restoration activity that would create a new sand feature. The Parties The Mayan Beach Club is a condominium association that operates and manages a 22-unit low-rise oceanfront residential condominium located along the southern part of Fort Lauderdale's beach. Shortly after its incorporation in 1953, The Mayan Beach Club assumed management of the condominium and its newly- constructed units. The Mayan Beach Club's condominium property is roughly 1/4 of a mile north of the ocean inlet to Port Everglades, a major seaport. Due primarily to a jetty that extends into the ocean along the edge of the inlet, beach sand has accreted in front of its property over a period of several decades. The Mayan Beach Club's property is bounded "on the East by the waters of the Atlantic Ocean." See Respondents' Ex. 11, Schedule A to Title Opinion and Guarantee, Fund Serial No. 18344. Its fee title ownership includes nearly 700 linear feet of beach between the CCCL (seaward of the condominium residential improvements) and the mean high water line ("MHWL") of the Atlantic Ocean. Ocean Lane Villas, Inc., is an association that owns adjacent property to the south of The Mayan Beach Club property. It notified the Department that it supported the Permit and granted permission for the authorized activity to be conducted on its property. It joined The Mayan Beach Club in seeking the Modification. The Department is the state agency with the authority to establish CCCLs and to issue permits for construction activities seaward of a CCCL when an applicant has shown the permit "to be clearly justified by demonstrating that all standards, guidelines, and other requirements set forth in the applicable provisions of Part I, Chapter 161, F.S., and [Florida Administrative Code Rule Chapter 62B-33] are met . . . ." Fla. Admin. Code R. 62B-33.005(4). Also see §§ 161.052 and 161.053. Incorporated in the State of Florida on August 31, 2010, STOP is a not-for-profit corporation. Its mission is to protect sea turtles, reduce hatchling mortality due to disorientation from artificial light sources, educate the public about marine turtle habitat and assist the State of Florida with its sea turtle conservation program. Broward County is a political subdivision of the state that has existed for more than one year prior to the date of the filing of the application at issue. Official recognition is taken that the population of Broward County is in excess of 25. The Charter of Broward County addresses its interests in natural resources and environmental protection. It has authority, for example, to adopt environmental rules and regulations that prevail over municipal ordinances with which they conflict. Standing STOP's Standing STOP was incorporated less than one year prior to the date of the filing of the application for the Modification. STOP has 120 permanent staff members. "Almost all of them" (Hearing Tr. vol. 2, 231, Feb. 16, 2012), live in Broward County. All of STOP's permanent staff members are permitted by the Florida Fish and Wildlife Conservation Commission ("FWC") to monitor Broward County's beaches nightly during sea turtle nesting season. The members' work in the field is in shifts of a minimum of four hours between sunset and sunrise. Members work many shifts of more than four hours, some as long as ten hours. The activity of STOP includes recovering disoriented turtle hatchlings and documenting disorientations. To rescue sea turtles, FWC permittees must complete a written test and field training that requires 40 hours on the beach. STOP's program is unusual. It is one of the few organizations in Florida that recovers hatchlings at all hours of the night instead of in early morning daylight after hours of disorientation. According to STOP activity logs, at least 20 different members have patrolled the beach in the area of the Sand Mound. STOP has a website for public use and another accessible only to its members. It posts photos, videos, commentary associated with its activities and materials for public education to serve the conservation of sea turtles. Prior to filing its petition, STOP filed public comments with DEP that the Modification "is likely to cause harm to protected nesting adult sea turtles, and could prove deadly to numerous sea turtle hatchlings, in addition to harming other protected species." STOP Ex. 11. Broward County's Standing Broward County has established a Natural Resource Protection Code in Chapter 27 of the Broward County Code of Ordinances (the "BCC"). The Natural Resource Protection Code was adopted by the County to promote the preservation, protection, and enhancement of natural resources. These resources include coastal and marine animal and plant life. The County also relies on the Florida Statutes5/ and the Florida Administrative Code, including section 161.053 and chapter 62B-33, to protect the interests of the County and its residents in natural resources, plants, and wildlife that are present in the beach and dune system in Broward County. The County's eastern boundary is three miles east of the MHWL of the Atlantic Ocean. The beach area affected by the Modification is in the County. The County has an interest in protection of the area's natural resources, plant, and wildlife. The Sand Mound's Vegetation The Sand Mound's vegetation, in varying density, is spread over approximately 12,000 square feet of the Sand Mound. The vegetation is not as robust as typical dune vegetation. Vegetation on half of the Sand Mound is sparse. If the Sand Mound were part of a dune restoration project, it would require the planting of additional vegetation. In a 2011 Site Inspection Report, the Sand Mound was determined to support "Sea Oats, Panic Grass, Seashore Saltgrass, Beach Elder, Chamaesyce, Ambrosia, Railroad Vine, Dune Sunflower and Beach Star." Of the species growing on the Sand Mound only the beach star is endangered. After interaction with the Department of Agriculture, DEP, and the City of Fort Lauderdale, the Applicants agreed to plant several endangered species in another location as mitigation for the destruction on site of the beach star vegetation. The City of Fort Lauderdale agreed to partner with the Applicants as part of a dune restoration project at The Palms Condominium, north of the Applicants' property. The mitigation plan included removal of invasive exotic plants, and replanting the mitigation area with native plants, including several endangered species. The mitigation planting area is approximately 14,000 square feet, which is roughly 2,000 square feet more than the area of vegetation that will be lost through the removal of the Sand Mound. Minimization of Impacts The Applicants minimize impacts by not proposing activity beyond that which is necessary to remove the Sand Mound and distribute the excavated sand on the beach. Adverse Impacts "Adverse impacts" are defined by rule 62B-33.002(33)(a) as those "to the coastal system that may cause a measurable interference with the natural functioning of the coastal system." The "coastal system" is defined by rule 62B-33.002(13) as "the beach and adjacent upland dune system and vegetation seaward of the coastal construction control line; swash zone; surf zone; breaker zone; offshore and longshore shoals; reefs and bars; tidal, wind, and wave driven currents; longshore and onshore/offshore drift of sediment materials; inlets and their ebb and flood tide shoals and zones of primary tidal influence; and all other associated natural and manmade topographic features and coastal construction." Removal of the vegetation on the Sand Mound, which is seaward of the CCCL, will, of course, have an impact on the vegetation which is part of the coastal system. But it will not cause measurable interference with the natural function of the coastal system. Removal of the Sand Mound, itself, will not cause adverse impacts to the coastal system. Mitigation The Department must deny an application for an activity seaward of the CCCL if it does not provide for mitigation of adverse impacts. If a project causes no adverse impact, mitigation is not required. See Fla. Admin. Code R. 62B- 33.005(3)(b). Mitigation is not required for the removal of the Sand Mound. Furthermore, no mitigation is required by the Modification since the vegetation will be removed if the Permit is implemented without the modification. Nonetheless, the Applicants entered into the mitigation described above with regard to the planting of endangered species. As part of the effort to mitigate off-site, the Applicants made a one-time payment of $7,500 to the City of Fort Lauderdale. The mitigation plan was successfully implemented prior to hearing. Other General Criteria The proposed project will not cause any anticipated short-term or long-term direct or indirect effects on the coastal system and will not cause cumulative impacts to the coastal system. The proposed project is not inconsistent with siting and design criteria. It will not result in damage to existing structures and property or lower existing levels of protection. It will not destabilize a frontal, primary, or significant dune nor will it cause significant adverse impacts to the beach and dune system due to increased erosion by wind or water. The proposed project will not reduce the existing ability of the coastal system to resist erosion during a storm. It will not significantly interfere with the coastal system's ability to recover from a coastal storm. The proposed project will not affect the hydrology of the water flowing across the land and will not direct discharges of water or other fluids in a seaward direction. The proposed project will not result in the net excavation of the in situ sandy soils seaward of the CCCL. The proposed project will not cause an increase in structure induced scouring. The proposed project will not interfere with public access and will not interfere with lateral beach access. Marine Turtles Each night during late summer months, thousands of marine turtle hatchlings emerge from nests located on Broward County's beaches. If not all, nearly all of the nests belong to two of the five species of marine turtles protected by the Marine Turtle Protection Act, section 379.2431, Florida Statutes: the Atlantic loggerhead turtle and the Atlantic green turtle. Of these two species, the green turtle is more likely to be affected by removal of the Sand Mound. A significant number of the turtle nests in Broward County are green turtle nests, and a significant number of the hatchlings on Broward County's beaches and in the area of the Sand Mound are green turtle hatchlings. Marine turtles nest on a wide variety of beaches, but they tend to prefer steeply sloped beaches with prominent vegetated dunes. Dunes are a particular attraction for green turtles in search of a nest because green turtles prefer to nest at higher beach elevations than do loggerheads. The Sand Mound is a marine turtle nesting habitat. Removal of the mound poses the threat of three impacts to marine turtles: 1) promoting abandonment of nesting attempts by female turtles; 2) negatively affecting the survivorship of nests that would have been in the Sand Mound; and 3) disorientation of hatchlings emerging from nests where the Sand Mound would have been when the Sand Mound would have provided silhouette and shape cues that correctly orient hatchlings toward the sea. Sea turtle hatchlings orient toward the ocean and hatchling disorientation frequently results in death. The Sand Mound offers a visual cue to a female marine turtle that indicates the turtle has crawled far enough out of the water and can stop. Turtles that emerge and find no dune or other cover tend to wander longitudinally along the beach. They may return to the sea in what is known as a "false crawl." See Hearing Tr. vol. 2, 201-202, Mar. 9, 2012. False crawls have a cost to the female turtle's energy requirement for nesting. Dune elevation increases nest survivorship because it protects the eggs from storm events. Nests at higher elevations have a better chance of survival than nests at lower elevations because they are less likely to suffer effects from erosion and inundation, two of the main factors that determine nest survivorship. A dune also offers to hatchlings the benefit of a silhouette which blocks out artificial light from the low landward horizon that causes hatchling disorientation. Prominent vegetated dunes are especially helpful in assisting hatchling orientation. Dune vegetation also provides shade, which increases the nest survivability over nests in bare sand. Artificial lighting can disrupt the ability of hatchlings to find the sea from their nests. Hatchlings benefit from the silhouette of a dune that blocks out some of the disorienting lights that exist in an urban environment. Dune vegetation assists in scattering light, and the downward slope of a dune is a cue that orients hatchlings towards the water. Both Dr. Witherington and Dr. Rusenko testified that in their opinion, the removal of the Sand Mound would constitute a "take" as defined in section 379.2431. Isolating the impact of the removal of the Sand Mound is difficult, however, because there are so many factors that have a bearing on turtle nesting and hatchling disorientation along the southern stretch of Fort Lauderdale's beach. These factors include "night glow," predation, erosion form high-wave storms, weather, inundation, and direct artificial lighting. Dr. Witherington was more equivocal as to whether the Modification would be a take if the Permit had been implemented. See Hearing Tr. vol. 2, 252-255, Mar. 9, 2012. In contrast to the opinions of Drs. Witherington and Rusenko which were based on knowledge of marine turtle behavior in general, the Applicants' biological consultant, John James Goldasich, used Broward County data about turtle nesting and hatchling disorientation in the area of the Sand Mound to form his opinions. Mr. Goldasich also based his opinion on light measurements taken on site which indicated no distinction between the lux values of light on the east side of the Sand Mound and on the west side. Furthermore, night glow, which tends to disorient marine turtles, is significant near the Sand Mound and on the southern stretch of Fort Lauderdale's beach. The accuracy of the Broward County data used by Mr. Goldasich was verified by Lewis Edward Fisher, Jr., the County's lead employee for turtle management. Some of the data included turtle nests that were relocated onto The Mayan Beach Club property, but of the exhibits used by Mr. Goldasich, only Respondents' Exhibit 161 showed relocated nests. The inclusion is insignificant. Exhibit 161 depicts only two relocated nests. Mr. Goldasich offered opinions with regard to two issues: 1) whether the Sand Mound affects the location and pattern of turtle nesting; and, 2) whether the Sand Mound has an effect on hatchling disorientation. Three nest plotting maps used by Mr. Goldasich illustrate that the Sand Mound has had little, if any, impact on the location and pattern of turtle nesting: 1) Applicants' Exhibit 99, which plots nesting data of loggerhead and green marine turtles in the vicinity of the Sand Mound from 2002 to 2011; 2) Applicants' Exhibit 128, which plots nesting data in a broader area than Applicants' Exhibit 99 from 2001 through 2011; and 3) Applicants' Exhibit 133, which plots nesting data of loggerhead and green turtles along southern Fort Lauderdale beach for the year 2011. The three exhibits show no concentration or pattern of loggerhead nesting in the vicinity of the Sand Mound. The absence of effect on loggerhead nesting is expected because they do not exhibit the preference for nesting in dunes that green turtles exhibit. Of approximately 34 green marine turtle nests plotted on Applicants' Exhibit 99, only six have nested in the immediate vicinity of the Sand Mound. The locations of the other 28 nests demonstrate the preference of green marine turtles to nest at higher elevations in the upland beach. Respondents' Exhibit 133, that contains FWC data, supports the finding that the Sand Mound has been a negligible factor for the nesting of green turtles. Of the 15 green turtle nests depicted in Respondents' Exhibit 133, two are located in the vicinity of the Sand Mound. Four are concentrated in a small contained beach area next to tall buildings near the mouth of Port Everglades in an area of greater light disturbance, but with no dune influence. The remaining nine are spread over the hundreds of meters to the north and south of the Sand Mound. They do not depict any concentration of green turtle nesting close to the Sand Mound. Applicant Exhibits 99, 128, and 133 establish that the Sand Mound has had little, if any, bearing on marine turtle nesting. To evaluate whether the Sand Mound had any discernible effect on hatchling disorientation, Mr. Goldasich analyzed FWC Marine Turtle Disorientation Reports provided by the County. If the Sand Mound protects hatchlings from disorientation, then hatchlings from nests on or near the dune should exhibit less disorientation. In comparing disorientation from two dozen nests, there is no correlation between nest proximity to the Sand Mound and hatchling disorientation. Analysis of hatchling disorientation data from the four 2011 green turtle nests in the immediate vicinity of the Sand Mound also yields a finding of no correlation between nest proximity to the Sand Mound and hatchling disorientation. There is insufficient evidence as to why so many hatchlings in the proximity of the Sand Mound have not benefited from its presence. It may be because of night glow, weather, or other relevant factors. Whatever the cause, Respondents have presented empirical data and analysis that reveals no orientation benefit to hatchlings from the Sand Mound, a sand feature that is not a dune on a stretch of beach that is without dunes. The Applicants' data and analysis is more persuasive than Petitioners' prediction based on general knowledge of marine turtle behavior in coastal systems that include dunes. No Take Letter When the Department believes a proposed project justifies an inquiry into whether the project would constitute a Marine Turtle Take, it asks FWC to investigate the issue and, if appropriate, to issue a "take letter." See Hearing Tr. vol. 1, 24, Mar. 9, 2012. In the initial stages of the review of the application for the Permit, the Department did not request FWC to determine if a take letter should be issued. The proposed activity seemed to Department personnel not to constitute a "take." Furthermore, the activity was restricted to a time outside of the marine turtle nesting season. Later in the process when the "take" issue had been raised by others, DEP requested that FWC determine whether or not to issue a take letter. The Department contacted FWC repeatedly about the matter. FWC did not issue a take letter. The Department: No Position on the "Take" Issue At hearing, the Department described its position on the Marine Turtle Take issue as neutral. It continued to have no position on whether the evidence demonstrated a "take" or not in its proposed recommended order.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order that issues the Modification as reflected in Permit No. BO-612 M1 filed by the Department with its Clerk on September 14, 2011. DONE AND ENTERED this 22nd day of August, 2012, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 22nd day of August, 2012.
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Department adopts and incorporates herein the Findings of Fact and Conclusions of Law contained in the Recommended Order. Accordingly, it is ORDERED that: The Department’s actions in this cause are affirmed, and the Petitioner’s formal written protest is hereby dismissed with prejudice. DONE AND ORDERED this Al day of October, 2005, in Tallahassee, Florida. , JAMES V. CROSBY, JR., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, FL 32399-2500 (850) 488-2326 RIGHTS OF APPEAL This Order may be appealed with thirty (30) days by filing a Notice of Appeal with the agency and with the District Court of Appeal. Except in cases of indigence, the Court will require a filing fee and the agency will require payment for preparing the record on appeal. For further explanation of the right to appeal, refer to Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure. Copies furnished to: Barbara J. Staros, Administrative Law Judge’ Richard J. Saliba, Esquire Division of Administrative Hearings Susan P. Stephens, Esquire The DeSoto Building Department of Corrections 1230 Apalachee Parkway 2601 Blair Stone Road Tallahassee, FL 32399-3060 Tallahassee, FL 32399-2500 Michael E. Riley, Esquire Louis A. Vargas, General Counsel Gray Robinson, P.A. Department of Corrections Post Office Box 11189 2601 Blair Stone Road Tallahassee, FL 32302-3189 Tallahassee, FL 32399-2500 Filed in the official records of the Department of Corrections on this al day of October, 2005. Agency Clerk
Conclusions This matter comes before the Department of Corrections (“Department”) for consideration and final agency action. On June 30, 2005, Barbara Staros, Administrative Law Judge (“ALJ”), Division of Administrative Hearings, conducted a formal hearing in this cause and, on September 9, 2005, issued a Recommend Order. A copy of the Recommended Order is attached hereto as Appendix “A”. Pursuant to section 120.57(3)(e), Florida Statutes, and Rule 28-106.217, Florida Administrative Code, the parties were allowed ten (10) days to submit exceptions to the Recommended Order. On September 19, 2005, The Sherwin-Williams Company, herein after referred to as Petitioner, submitted its Exceptions to Recommended Order. Respondent, the Department of Corrections (hereinafter referred to as the Department), has not submitted any exceptions to the Recommended Order. On September 15, 2005, ‘the Department filed a motion to tax costs. On October 5, 2005, the ALJ granted the motion to stay and placed the motion to tax costs in abeyance until the issuance of a final order and any appellate proceedings concluded. STANDARD OF REVIEW An agency may not reject an ALJ’s findings of fact “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Section 120.57(1)(), Florida Statutes; see also Florida Power & Light v. State of Florida, Siting Board, 693 So.2d 1025, 1027 (Fla. 1* DCA 1997). An agency may not reweigh the evidence presented at formal hearing and substitute its findings for those of the ALJ. South Florida Water Management District v. Caluwe, 459 So.2d 390, 394 (Fla. 4" DCA 1984). Accordingly, an agency must accept an ALJ’s findings of fact if they are supported by competent substantial evidence in the record. Id. at 395. Finally, an agency may not circumvent these requirements by simply characterizing an ALJ’s findings of fact as legal conclusions. Goin v. Commission on Ethics, 658 So.2d 11318 la. 1"DCA 1995). RULINGS ON PETITIONER’S EXCEPTIONS 1. Petitioner’s Exception #1 to the findings of Fact in Paragraph #24 is rejected. This finding of fact largely consists of a quote from Bobby Brooks, an Operations and Management Consultant Manager for the Department. This quote is taken directly from the transcript of the hearing conducted on June 30, 2005. Nothing in Petitioner’s argument contradicts the actual finding in Paragraph 24. . Petitioner’s Exception #2 to the findings of Fact in Paragraph #13 is rejected. This finding was stipulated to by both parties. See Pre-Hearing Stipulation of the Parties, filed June 27, 2005. . Petitioner’s Exception #3 to the findings of Fact in Paragraphs #25 and #28 are rejected. Again, these findings stem directly from the testimony of Mr. Brooks found in the transcript. The conclusion complained of in the exception is found nowhere in the actual findings of fact that are being challenged. . Petitioner’s Exception to the conclusion of law found in Paragraph #35 is rejected. The hearing officer’s finding that the only evidence of a policy that the Department rejects and rebids when only one responsive bid is received comes from Mr. Brooks’s testimony and is supported by the finding of fact in Paragraph # 25: . Petitioner’s Exception to the conclusions of law found in Paragraphs #38 and #39 are rejected. As noted by the hearing officer, Mr. Brooks articulated a factual and logical basis for the decision to reject all bids, and even if one “may have reason to disagree with how Mr. Brooks reached his decision, his decision is not illogical.” (Recommended Order, p. 11) . Petitioner’s Exception to the conclusion of law found in Paragraph #41 is rejected. “An arbitrary decision is one not supported by facts or logic, or despotic.” Board of Trustees of Internal Imp. Trust Fund v. Levy, 656 So.2d 1359, 1362 (Fla. 1 DCA 1995) citing Agrico Chemical Co. v. Dep’t of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1" DCA 1978). From the transcript, it is clear that the decision to reject all bids is based on reason, even if one does not agree with the end result. Mr. Brooks reasonably had concerns about the bid prices and the fact that there was not a competitive bid. These concerns are certainly not indicative of a despotic or arbitrary decision. Again, “[a]bsent a showing that the purpose or effect of the reject is to defeat the object and integrity of competitive bidding,” the Department’s decision to reject all bids must stand. Gulf Real Properties, Inc. v. Department of Health and Rehabilitative Services, 687 So. 2d 1336, 1338 (Fla. 1" DCA 1997),
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
The Issue The issues in this case are whether Respondent, Coconut Cove Resort and Marina, Inc., failed to comply with the requirements of Sections 440.10, 440.107, and 440.38, Florida Statutes, and, if so, the appropriate amount of penalty which should be assessed against Respondent.
Findings Of Fact The Department of Financial Services (hereinafter referred to as the “Department”), is the state agency charged with the responsibility of enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Respondent, Coconut Cove Resort and Marina, Inc. (hereinafter referred to as “Coconut Cove”), is a Florida corporation, which at the times relevant operated a small hotel/resort located in Islamorada, Florida. On November 4, 2008, a complaint was received by the Bureau of Compliance Office of the Division of Workers’ Compensation located in Miami, Florida, requesting a determination of whether Coconut Cove was in compliance with Florida’s workers’ compensation coverage requirements. The complaint was referred to Xotchilth Valdivia, a Department investigator, for investigation. After performing an in-office audit of the Department’s databases and finding no evidence that Coconut Cove had secured workers’ compensation coverage or had obtained exemptions from Florida workers’ compensation laws, Ms. Valdivia traveled to Coconut Cove’s location on November 6, 2008. Upon arriving at Coconut Cove’s location, Ms. Valdivia spoke with a woman by the named Comeau, who was manning the front desk of the resort. Ms. Valdivia asked to speak with Mr. Bates, but was informed that Mr. Bates, a commercial airline pilot, was away. Ms. Comeau, however, told Ms. Valdivia that Mr. Bates’ wife, Magda was available. While waiting for Ms. Bates to arrive, Ms. Valdivia observed four individuals who appeared to be performing work for the resort, in addition to Ms. Comeau, who was manning the front desk: a male who was working around the swimming pool, and two women who appeared to be maids with cleaning mops. When Ms. Bates arrived, Ms. Valdivia identified herself and the purpose of her visit. During the course of her discussion with Ms. Bates, Ms. Bates identified 18 individuals as employees of Coconut Cove by name and occupation. The 18 individuals included Mr. and Ms. Bates, both officers of Coconut Cove. While indicating that she knew nothing about Florida workers’ compensation requirements, Ms. Bates also stated that Coconut Cove did not have workers’ compensation coverage. Finding that Coconut Cove had four employees as of November 6, 2008, and no workers’ compensation coverage, conclusions not disputed by Ms. Bates, Ms. Valdivia issued Stop- Work Order No. 08-326-D5 and served it on Ms. Bates. A Request for Production of Business Records for Penalty Assessment Calculation (hereinafter referred to as the “Request for Records”), was also served on Ms. Bates. The Request for Records sought payroll records for the three-year period preceding the date of the issuance of the Stop-Work Order. Ms. Valdivia explained the reason why the Stop-Work Order was being issued and the purpose of the Request for Records. She also explained that the business records would be utilized in calculating any penalty owed by Coconut Cove for failing to carry workers’ compensation coverage. Although Coconut Cove attempted to prove that Ms. Valdivia acted arbitrary in her actions to this point, the evidence proved the contrary. Ms. Valdivia acted reasonably, appropriately, and had good cause for the actions taken. In response to the Request for Records, Ms. Bates telephoned the accountant for Coconut Cove and requested that he provide the payroll information being sought by the Department. Almost all that information was immediately faxed to Ms. Bates, who then provided a copy to Ms. Valdivia. The documentation consisted of a payroll report for Coconut Cove for the period January 1, 2008, to November 6, 2008, UCT-6 reports filed by Coconut Cove with the Florida Department of Revenue for the fourth quarter of 2005 through the third quarter of 2008. (Petitioner’s Exhibits 4B, 4E, 4F, and 4G.) Based upon the information contained in the UCT-6 reports provided by Coconut Cove to the Department, the names of employees and the gross income paid to them by Coconut Cove was reported by Coconut Cove to the Department of Revenue. Those reports indicate that Coconut Cove employed four or more individuals each month from October 2005 through September 2008. Subsequently, Coconut Cove provided additional payroll information to the Department concerning payroll for the periods of November 7, 2005, through December 31, 2005, and November 1, 2008, through November 6, 2008. Again, the documents, which were provided by Coconut Cove, indicate that it had employed four or more individuals during the periods of time covered by these documents. The Request for Records included a request for time sheets, check stubs, and check ledgers for the period of time at issue, November 7, 2005, to November 6, 2008 (hereinafter referred to as the “Audit Period”). None of these documents were provided to the Department or at hearing. While Coconut Cove had a stack of documents at hearing which Mr. Bates referred to generally as time cards, those documents were not offered into evidence and no specific testimony concerning the vast majority of the documents was provided. Based upon the documentation provided by Coconut Cove to the Department, documentation which was offered and admitted at hearing, the Department proved clearly and convincingly that Coconut Cove employed four or more individuals during each month of the Audit Period. This finding excludes Mr. and Ms. Bates, who, although employees of Coconut Cove who had not obtained exemptions from coverage during the audit period, received no remuneration from Coconut Cove during the Audit Period. The documentation provided by Coconut Cove was provided to Russell Gray, an employee of the Department since 1986. Mr. Gray reviewed all the payroll information provided by Coconut Cove to Ms. Valdivia, transferred the payroll information to spread sheets, and proceeded to calculate the penalty imposed pursuant to statutes and rules for Coconut Cove’s failure to comply with the insurance coverage requirements of Chapter 440, Florida Statutes. The manner in which Mr. Gray calculated the penalty is more specifically and accurately described in the Department’s proposed findings of fact numbered 21 through 25 and 27, which are hereby incorporated into this Recommended Order by reference. Mr. Gray determined that the penalty to be assessed against Coconut Cove was $27,897.58. An Amended Order of Penalty Assessment for the penalty was issued December 3, 2008, and served on Coconut Cove by certified mail on December 4, 2008. Subsequently, Mr. Gray concluded that his penalty calculation was incorrect to the extent that he had included gross income in the amount of $1,316.65 to an employee named Gerald Elmore. This figure was the income of another employee and not income attributable to Mr. Elmore. In order to correct his error, the Department filed a Motion to Amend Order of Penalty Assessment on September 18, 2009, seeking to file a 2nd Amended Order of Penalty Assessment, lowering the penalty assessment to $27,821.74. Despite objections to this amendment raised at hearing by Coconut Cove, the Motion to Amend was granted after hearing the impact of the change and the reason it was required. On December 15, 2008, Coconut Cove entered into a Payment Agreement Schedule for Periodic Payment of Penalty. The Department, therefore, issued a Conditional Release from Stop- Work Order, also dated December 15, 2008. Coconut Cove’s relevant defense to the foregoing consisted of the assertion by Mr. and Ms. Bates that they simply did not have more than three employees at anytime. It was asserted that employees listed on the documentation provided by Coconut Cove’s accountant to Ms. Bates and given by Ms. Bates to Ms. Valdivia, were actually employees of another entity owned by the Bates, Paul’s Beach Bar and Grill, Inc., which runs an on- site restaurant and catering service. The testimony of Mr. and Ms. Bates on this issue was not convincing and is rejected as unworthy. The testimony was uncertain as to time, short on specifics, and was contrary to the information reported on the payroll records and UCT-6s provided by Coconut Cove’s accountant. That testimony is also rejected because no explanation as to why the individuals had been listed as employees of Coconut Cove on the payroll records and UCT-6s if they were indeed employees of Paul’s Beach Bar and Grill, Inc. The Department proved clearly and convincingly, based upon documentation produced to it by Coconut Cove, that the individuals named on the penalty worksheet attached to the Amended Order of Penalty Assessment were employees of Coconut Cove during the Audit Period, that Coconut Cove paid those individuals the gross income included in the penalty worksheet, and that the calculation of the penalty assessment, as amended at hearing, was accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Respondent, Coconut Cove Resort and Marina, Inc., failed to secure the payment of workers’ compensation for its employees during the Audit Period, in violation of Section 440.107, Florida Statutes; and Assessing a penalty against Coconut Cove Resort and Marina, Inc., in the amount of $27,821.74. DONE AND ENTERED this 30th day of November, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 30th day of November, 2009. COPIES FURNISHED: Timothy L. Newhall, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 Paul Bates Magda Bates 8401 Overseas Highway Islamorada, Florida 33036 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying and the entire record compiled, the following relevant facts are found. Bradford Clough, Respondent, is a registered pool contractor who holds license No. RP 0031551, which license is current and active. Respondent was first licensed on December 6, 1977, as qualifier of Aqua-Vac Self Clean Swim Pools. (Petitioner's Exhibit 1.) Arnold Verway has been the Building Director for Charlotte County since May 8, 1978. As Building Director, Mr. Verway is in charge of receiving and investigating complaints filed by homeowners against contractors licensed by the Charlotte County Building Board. In this regard, on October 5, 1978, the Charlotte County Building Board listened to two complaints which had been filed with the Department against Respondent "for not fulfilling his contract and for jobs done in an unworkmanlike manner . These complaints were filed by Mr. and Mrs. Phillip J. Greulich and Mr. and Mrs. George Beveridge, of Port Charlotte. After discussion, the Board sent formal notification to Respondent to attend the Board's next regular meeting in order to allow him an opportunity to present any defense respecting the above referenced complaints. Respondent was notified by certified letter dated October 13, 1978, return receipt requested. (Petitioner's Exhibit 2.) At the Board's meeting on November 2, 1978, complainants George Beveridge and Phillip Greulich restated their complaints which had earlier been made to the Board at its October 5, 1978, meeting. Respondent had not resolved the complaints to the satisfaction of complainants as of the date of this hearing. Respondent did not appear at the Board's November 2, 1978, meeting. The Board suspended Respondent's certificate of competency "until such time as he demonstrated to the Board that he had rehabilitated himself and was thus eligible and capable of working in Charlotte County". (Petitioner's Composite Exhibit 3.) The Petitioner has reviewed the disciplinary action taken by the Charlotte County Building Board. (Testimony of Petitioner's investigator, John Viking.) RESPONDENT'S DEFENSE As stated, Respondent did not appear at this hearing or at the hearing before the Charlotte County Building Board, despite proper notice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent's registered pool contractor's license, RP 0031551, be REVOKED RECOMMENDED this 30th day of April, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
