Findings Of Fact Lior Hason is the owner of Britt's Cafe, a restaurant which occupies property owned by the Petitioner's Stanislaw and Kasimiera Budzinski. On or about December 19, 1995, Harry S. Cline, an attorney for Mr. Hason and the Budzinskis, filed an application for a variance from the City of Clearwater's Development Code, for the purpose of eliminating three required parking spaces from the front of the subject property for the construction of an outdoor cafe at 201 South Gulfview Boulevard. The Code requires one parking space per 200 square feet of gross floor area, and a variance was required to remove three existing parking spaces from the unit's parking space inventory. The matter was brought before the City's Development Code Adjustment Board at its January 11, 1996 meeting. Mr. Cline appeared at the meeting on behalf of the applicant and presented the project. No one else was present to speak in support of or in opposition to the request. However, four letters in opposition from neighboring business owners were submitted. Notwithstanding these objections, the Board determined that the applicant had substantially met all standards for approval listed in the City's Land Development Code; and upon vote of the Board, the application was approved, subject to certain conditions, by a three to two majority. Mr. Hason entered into discussions with City officials to determine what was necessary. Official City reaction was initially favorable. Mr. Hason was advised of the requirements for the project and had plans drawn which called for a deck with a 35 to 36 inch railing with landscaping around it, and with posts and lights. When the plans were submitted to the City officials, the only change suggested was to raise the railing height to 45 inches, which was done, after which the City approved the plans and the permit was granted. The deck was then constructed exactly according to the approved plans. At some time during 1996, Mr. Hason discussed with some City employees putting an awning over the deck. During these discussions, the City employees sent Mr. Hason a copy of Section 41.221(1)(c), Clearwater City Code, which provides for awnings to be removable. Mr. Hason considered the sending of this Code provision to be tantamount to a favorable reply to his inquiry, and, based on that, he finalized his plans for the installation of a removable awning. The proposed awning is designed in such a fashion as to be extendible and retractable on a frame, capable of easily being pulled up against the front of the building like a drapery. With a minimum of further effort, consisting of the removal a several bolts, the entire awning construction can be removed from the frame. Mr. Hason submitted his application for the variance to install the awning on February 2, 1997. In the interim, the City employees with whom Mr. Hason discussed the project changed their position from favoring the project to opposing it. He was ultimately advised in December 1996 or January 1997 that the awning could not be permitted because an awning could not be approved over a deck for which a permit should not have been issued and for which the issuance was a mistake. Though the Board had not yet voted on the application, no information was given to Mr. Hason as to what he could do to make the project approvable. His application, on February 2, 1997, was submitted because, Hason claims, he had been told, by someone not further identified, that applying for a variance for the awning would make everything right. The Variance Staff Report submitted to the Board by the appropriate City employees acknowledged that the frame over which Mr. Hason proposed to put the awning does not meet code because it was constructed within a required setback area from South Gulfview Boulevard, but since the frame was built pursuant to a City-issued permit, consistent with City policy, the City accepted its existence. In its final recommendation to the Board, the staff concluded that notwithstanding the encroachment into the setback area, the project "appears to comply with all standards for approval, provided attention is given to the external appearance of the cafe:" The staff then went on to recommend approval of the project subject to certain conditions, all of which, Mr. Hason accepts and agrees to. Nonetheless, the Board denied the permit by a vote of four to one. Mr. Hason contends that the Board vote was an attempt by the Board to get back at him because of what it perceived as his failure to comply with the conditions placed upon the issuance of the first permit and his alleged misrepresentation of the scope of his project at the time. Mr. Hason, however, categorically denies he has done anything contrary to the dictates of the City. He went back to City officials many times during the construction of the deck to make sure the project was built as required. The majority of the Board members believe, however, that the deck as constructed, goes far beyond the limited structure approved by the granting of the parking space variance in January 1996. This animosity toward the project can be seen from a review of the audio record of the February 13, 1997, Board meeting where, during a colloquy between a Board member and Mr. Hason, it appeared the member was somewhat put out by the entire situation. His analysis indicates a less than complete recollection of the matter, however. Whereas one of the conditions to the issuance of the initial permit was that the area of the outdoor cafe should not be greater than 25 percent of the indoor area of the restaurant, this member pointed out that the 69 outdoor seats were far in excess of 25 percent of the 115 or so indoor seats. This constituted a confusion of seating as opposed to area. No evidence was presented concerning whether Mr. Hason had violated the area constraint. In the main, however, while it appeared that a majority of the Board members were unhappy about the way the project developed, and expressed the opinion that the project did not conform to what they had intended to approve, there was no indication any member s vote was motivated by anything other than a sincere belief in the correctness of his position. There was no indication of any inappropriate or vindictive action by anyone on the Board or its staff. Stephen Sarnoff, a central permitting specialist with the City reviewed the plans for the initial construction and for the current application. As he recalls, the plans for the initial deck construction did not show any support beams, fans, overhead structure or latticework fencing, and the deck, as built, does not conform to the plans as submitted. City Code requirements call for a railing of from 30 to 42 inches high. The current railing of 45 inches does not conform to that standard, and Mr. Sarnoff is not aware of any request from the City that the railing be raised to that height, as Mr. Hason claims. By the same token, while there is no requirement in the ordinance that a deck be of a certain height, anything higher than 12 inches is considered a structure and a waiver is required. This deck was approved for 12 inches. A certificate of occupancy is usually issued for a deck, but in the instant case, such a certificate has not been issued because the deck, as built, is not in compliance with the 1996 approval. If it is brought into compliance, it will be approved. Sarnoff is aware of and familiar with other outdoor restaurant decks built at various locations in the Clearwater area, as indicated by Mr. Hason. Some are not within the CR-28 zone and do not come under the same standards as are applicable here. Others, which must conform to the instant requirements appear to have movable awnings which are acceptable. Still others are in a different zoning district with different set-back requirements, and some were initially denied, but were subsequently approved when they were brought into compliance with the requirements. John Richter, a senior planner for the City, was the individual who prepared the staff report on the instant project and initially recommended approval, contingent upon changes to the external appearance of the facility. He made suggestions and has discussed the project with Hason on his several visits to the property. He did discuss an awning with Hason at some point, but their discussions did not deal with its mobility. All in all, Mr. Richter concluded that the project appears to meet the standard for approval, provided attention is given to the external appearance of the cafe. David S. Shuford, the City's central permitting director and development code administrator indicated that the variance required for the awning, which was an integral part of the structure already built, was not automatically granted with the granting of the permit for the deck structure. Section 42.221, Clearwater City Code, was adopted to promote a more festival atmosphere in some of the outdoor tourist areas. The intent of subsection (l)(c) of that provision was to require the use of moveable items and to design structures that would meet wind requirements and not interfere with pedestrian traffic. The term "moveable" means what it says, and in Shuford's opinion, from the plans he saw, the proposed awning would not be easily moveable on a daily basis. The Clearwater City Code establishes the area in question as one where, once guidelines are developed, they will be adopted and be complied with. Mr. Shuford opines that the current deck, in the rafter area, goes beyond what was proposed at the time the project was submitted for the parking variance and was approved. This is what appears to be the source of the difficulty the Board members have with it. However, if designed to comply with the guidelines, this awning could be approved. He would agree with the conditions outlined in the staff recommendation so far as they relate to painting and architectural matters.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's personal view of the subject premises, the following relevant facts are found: In April or May of 1974, William M. Lyons, as president of Central Development Company, submitted an application for a permit to construct a 20 foot wide, 172 foot long concrete bridge across sovereign land connecting Parker Island in King's Bay with a mainland lot. Both the mainland lot, known as Lot 20, Parker Haven, and Parker Island are owned by Central Development Company. The application contains specific plans for run-off control. In 1975, various studies were performed by representatives of different environmental agencies concerning the proposed project. Representatives from the respondent Department of Environmental Regulation concluded that the bridge should cause no significant direct degradation of or adverse effect upon the water quality of King's Bay. The Director of the Division of Environmental Permitting therefore recommended the issuance of a permit and water quality certification following public notice of the project. In February of 1975, the Chief of Survey and Management of the Department of Natural Resources conducted a biological and hydrographic assessment and found that "the proposed bridge construction would eliminate a limited area of vegetated bottoms but would not, in itself, significantly affect aquatic biological resources," and that "it is improbable that the proposed bridge construction . . . would have significantly adverse hydrographic effects." The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The petitioners herein are citizens and property owners in the area and have requested a hearing on the permit application. The Department of Environmental Regulation forwarded the petition to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearing. Upon the agreement of all parties, the hearing was consolidated with other cases involving permits for projects in the King's Bay area of Crystal River. The prime issue upon which testimony was adduced at the hearing was the effect of the proposed bridge upon navigation. The waters of King's Bay are affected by the ebb and flow of the tide. The bridge is to be approximately four and one-half feet above the mean high water level. The pass between Parker Island and the mainland Lot 20 is approximately 250 feet wide and is relatively shallow, ranging from a low of one foot to a high of approximately four and one- half feet deep, depending upon the tide. Net fishing and gigging in that area are prohibited. Power boats, air boats and small sailboats presently utilize the pass, but large sailboats would not prudently use this pass for safety reasons. Small power boats with windshields and/or covered tops would probably not be able to use the pass during high tide if the proposed bridge at a height of four and one-half feet is constructed. A mean high water survey, per se, was not conducted by or on behalf of the applicant. Rather, the applicant relied upon a bulkhead map which establishes a bulkhead line around Parker Island (Exhibit 9). This document describes mean high water as +1.2 elevation and the metes and bounds description of the bulkhead line is followed by the words "all being along the mean high water line." The King's Bay area and the springs located therein provide a winter home for manatee, an endangered species. During high tides, manatees have occasionally been observed in the pass between Parker Island and Lot 20 on the mainland. While further development and degradation of the area could affect the manatee population, the placement of the bridge itself would not affect the navigation of the manatee travelling in that area, though some would balk or be hesitant around the bridge. One of the greatest hazards to the manatee is injury or even fatality from boat propellers and collisions with fast moving power boats. A boat travelling at five miles per hour should present no problem to the manatee. Several residents owning waterfront lots on King's Bay testified that their view of the open water would be obstructed by the existence of the proposed bridge. The purpose of constructing the bridge is obviously to provide a means of access from the mainland to Parker Island. Parker Island is about five and one-half acres in size and is owned by Central Development Company. Preliminary land use plans have been developed for an environmentally oriented low density subdivision on Parker Island. The conceptual plans include the sale of eleven lots, one-third acre each, for residential purposes. Each lot owner would only be permitted to develop 5,000 square feet of the lot, with the remainder of the lot to be retained in an undisturbed state. The preliminary plans call for underground utilities, no seawalls and a centralized dock. It must be emphasized that these are preliminary or conceptual plans for development of the Island, and Central is in no way bound by said plans. On or about April 5, 1977, the Board of County Commissioners of Citrus County passed a resolution declaring that the area known as King's Bay and the islands located therein was an area of critical habitat, and that any man-made changes in the area be subject to public hearings and comply with all Citrus County ordinances, resolutions and regulations. Lot 20 on the mainland is zoned R-1AA which permits single family dwellings, municipally owned or operated parks and playgrounds, golf courses, certain temporary signs and certain conditioned accessory uses. Central Development Company has not appeared before the zoning board to seek a zoning change or exception for Lot 20. Central Development Company has submitted to the Department of Natural Resources an application for an easement for its bridge construction. This is the subject matter of Case No. 77-960, for which a separate recommended order is being entered.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Department of Environmental Regulation issue to Central Development Corporation a permit to construct a concrete bridge between Lot 20, Parkers Haven, and Parker Island subject to the following conditions: The height of the structure above mean high water level be increased from four and one-half (4 1/2) feet to six and one-half (6 1/2) feet; and Receipt by the applicant and exhibition to the Department of Environmental Regulation of the required easement or other form of consent from the Board of Trustees of the Internal Improvement Trust Fund authorizing the proposed use of sovereignty lands, as required by Florida Statutes 253.77 (1976). Respectfully submitted and entered this 16th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya M. Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue Whether Summary Final Order should be granted and, if so, whether Florida Administrative Code Rule 9B-3.475 is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is the owner of a construction company that constructs roof-overs in the Leon County area. A roof-over is a construction method where an existing roof is covered over with an additional layer of roofing material without removing the old roof. The construction method is specifically authorized by section 1510, Florida Building Code, Building Volume (2004 as amended 07/2007), and Section 511, Florida Building Code, Residential Volume (2004 as amended 07/2007). Roof-overs are not considered roof replacements; roof-overs are considered a form of reroofing. As indicated, amended Florida Administrative Code Rule 9B-3.0475 was effective on April 6, 2008. The rule adopted, by reference, the Manual of Hurricane Mitigation Retrofits for Existing Site-Built Single Family Residential Structures (the Manual). In general, Section 101 of the Manual provides the requirements for mitigation as prescribed by law. Section 201.2 provides permissible techniques for accomplishing the requirements defined by Section 101. The Manual is not part of the Florida Building Code. Section 101 of the Manual provides: Retrofits Required. Pursuant to Section 553.844, Florida Statutes, strengthening of existing site-built, single family residential structures to resist hurricanes shall be provided. Site built single-family residential structures shall mean site built family detached residential structures. 101.1 When a roof on an existing site-built, single family residential structure is replaced, the following procedures shall be permitted to be performed by the roofing contractor: (emphasis supplied) Roof-decking attachment and fasteners shall be strengthened and corrected as required by section 201.1. A secondary water barrier shall be provided as required by section 201.2. Section 201.2 of the Manual provides the methods for installation of a secondary water barrier when an existing residence is subject to work that includes a “reroof.” The term “reroof” is not defined within the Manual. The authority for Florida Administrative Code Rule 9B- 3.0475 is Section 553.844, Florida Statutes. Section 553.844(3)(a) states: A roof replacement must incorporate the techniques specified in subparagraphs (2)(b) 2 and 4. (emphasis supplied) Subparagraph (2)(b)2 states: Secondary water barriers for roofs and standards relating to secondary water barrier. The criteria may include, but not limited to. . . . Chapter 2 of the Florida Building Code, defines reroofing, for purposes of the Florida Building Code, to include roof replacement and roof-overs. However, the Florida Building Code definition of reroofing is not determinative of the meaning of the term reroof in the Manual since the Manual is not part of the Florida Building Code. Testimony demonstrated that Leon County’s Building Inspector recognized the fact that the mitigation manual was not meant to apply to roof-overs because application of the requirement for a secondary water barrier requires removal of an existing roof covering and is inconsistent with the practice of roof-overs. Additionally, the Respondents do not intend the requirement for secondary water barriers to apply to roof-overs and have stipulated to that interpretation in this hearing. While the Manual could have been more precise in the use of the terms roof replacement and reroofing, it is clear that, when read as a whole, the Manual only addresses roof replacement and does not apply to roof-overs. Such a requirement is within the Respondents’ statutory authority.
Findings Of Fact The Petitioner is an organization composed of persons who own property bordering on Crooked Lake in Polk County, Florida. Among the members of the Petitioner is a property owner who owns land directly adjacent to the land that the Applicant proposes to fill. Crooked Lake is a navigable body of water. The applicant, John Mangham represents the owner of certain property which is adjacent to Crooked Lake. The property includes a berm, or ridge which runs approximately parallel to the present borders of Crooked Lake. The Applicant proposes to fill areas adjacent to the berm landward from the present waterline. The waters of Crooked Lake at one time flowed around the berm, and the area which the Applicant proposes to fill has from time to time been submerged, and formed a part of Crooked Lake. The Department of Environmental Regulation is the state agency charged by law with the responsibility of issuing dredge and fill permits in the navigable waters of the state, and permits for construction of stationary installations in the waters of the state. During August, 1976 the Applicant commenced a landfill project on the property which is the subject of this proceeding. More than twelve truckloads of fill material were brought into the area, and were placed on the berm, and landward of the berm. Members of the Petitioner made efforts to stop the fill project, and they contacted officials of the Department. The Department concluded that certain of the Applicant's activities violated Department rules, and the Applicant agreed to remove debris which had been placed near the lake, to re-seed a partially cleared area between the berm and the lake, and to refrain from any further activity between the berm and the lake. The Department did not require that the Applicant remove any of the fill that had been placed landward from the berm, but it did request that the Applicant apply for an "after-the-fact permit" respecting the clearing of vegetation. The Applicant thereafter applied for a permit to place additional fill material landward from the berm. The Department has approved the application and has issued a permit. The Petitioner has filed a petition demanding that the permit be set aside, and that the Applicant be required to remove the fill which has already been placed in the area. The evidence presented at the final hearing is insufficient to establish whether the land that the Applicant has filled, and the land which the Applicant proposes to fill, is above or below the ordinary high waterline of Crooked Lake. Crooked Lake is presently at its lowest elevation within the memory of any of the persons who testified at the hearing. One of the witnesses has lived on land adjacent to Crooked Lake for more than forty years. The berm which lies on the Applicant's property has apparently been at all times out of the lake. The waters of the lake at one time surrounded the berm. Within the past three years the area landward from the berm has been covered with water, and it has been possible to reach the area by boat from Crooked Lake. Biological evidence offered at the hearing confirms that areas surrounding the berm were submerged at one time. Various estimates were presented respecting the elevation of the ordinary high waterline of Crooked Lake. None of the estimates were supported by substantial competent evidence. One witness, a qualified land surveyor, called by the Petitioner, attempted to establish the elevations of points which the Applicant proposes to fill. The witness' survey was not done in an appropriate manner, and is not creditable. So long as the waters of Crooked Lake remain at their present level, the Applicant's proposed project would have no environmental effect upon the waters of the lake. None of the fill material would be placed directly in the waters of Crooked Lake, and all of the work would occur more than 100 feet landward of the present waterline. It does appear that if the lake rose to previous levels, the land which the Applicant proposes to fill would be within the waters of the lake. If the area were filled, it would be above the level of Crooked Lake, even if the lake rose to prior levels. The Department requested that the Florida Department of Natural Resources issue a statement respecting ownership of the subject property. The Department of Natural Resources responded that the ordinary high waterline elevation contour has not been established for Crooked Lake. Neither the Department of Natural Resources nor the Florida Trustees of the Internal Improvement Trust Fund have given their consent to the proposed project.
Findings Of Fact Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.
The Issue The issues for disposition in this proceeding are whether, as alleged in the Administrative Complaints dated December 15, 2000, and April 3, 2001, Respondent committed negligence in the practice of structural engineering, and if those allegations occurred in violation of Section 471.033(1)(g), Florida Statutes, what appropriate penalty should be recommended.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record complied herein, the following relevant facts are found. At all times material hereto, Petitioner, Florida Engineers Management Corporation, was the state agency responsible for regulating the practice of engineering in this state. At all times material hereto, Respondent, Shields E. Clark, P.E., was licensed as a professional engineer in the State of Florida having been issued license No. 6826 in 1958. In the 43 years Clark has been licensed as a professional engineer, this proceeding is the only allegation of professional wrongdoing of disciplinary action taken against him. Philip Matonte is a self-employed builder/property manager and owner of William Michael & Associates, Inc. This business entity is owner of two residential properties. One property is located at 397 Leeward Drive, Clearwater, Florida, and the other property is located in Seminole, Florida. DOAH Case No. 01-2290PL - 276 Bayside Drive, Clearwater, Florida. Respondent was the engineer of record as reflected by his signature on two sheets of plans for proposed structural additions to the residential property owned by Mr. and Mrs. Miller. Both sheets, date stamped June 26, 2000, had the logo DCI, Design and Consultant's, Inc., Drafting Services. R. Brazil drew the plans and Respondent signed and sealed both sheets. On or about August 4, 2000, the above-referred two sheets of proposed structural additions to the Millers' residence were submitted to the City of Clearwater for a building permit and were rejected by the City. The basis for the reviewers' rejection were: plans were vague and missing considerable details pertaining to existing beams and were missing information pertaining to the foundation, load paths for additional weight, and anchoring for the foundational structure. Petitioner's expert, John Power, opined that the above drawings failed to provide sufficient information to indicate the nature of the existing construction or sufficient detail to permit an evaluation of what effect the new construction would have on the existing structure. According to Power, he could not determine whether the carport had a roof; whether the carport had walls; if so, the wall section was not provided; whether the roof would have to be removed to accommodate the additional construction; whether there was a beam or wall at the back of the carport; and no details provided for the double 2 by 12 beam at the rear of the proposed addition to the existing structure. Power opined that Respondent failed to provide necessary notes and specifications in the drawings. First, he failed to specify the concrete strength for the new pilaster at the rear of the building and failed to specify the reinforcement steel grade. Second, he failed to specify the required concrete steel ties and failed to indicate the framing of the proposed skylight. Respondent's explanation that he provided xeroxed copies of specific code sections pertaining to each changed section of the plans with instructions to the person drafting the plans to include the code section requirements provided is evasive. Power further opined that Respondent failed to provide necessary notes and specifications in his drawings. He failed to specify the reinforcement steel grade; failed to specify the required concrete steel ties; failed to indicate the framing of the proposed skylight; and failed to specify the grade and species of lumber, that should have been specified, for the rafters. Power reasoned that it is unlikely a builder would use anything of a higher-grade No. 1 Southern Pine lumber. Even so, grade No. 1 Southern Pine would have been inadequate and overstressed, given the proposed structural additions and the double 2 by 12 members forming the beam at the rear of the building. Respondent's drawings calling for an 8 by 16 concrete beam in the front of the building was deficient because the beam is overstressed in shear and lacks the required stirrups for attachment. Further, there are no details as to how the platforms cantilevered from the exterior walls in Section F3 of the drawings are to be supported. Included on the blueprint drawings, dated June 26, 2000, was the statement: "This structure has been designed to resist uplift pressures generated by a 102-MPH wind," with the number 102 crossed out and the number "130" written underneath. From this change, Power opined that Respondent's method of calculation for basic wind speed was not clarified nor indicated on the drawings. The wind speed calculations and the added weight of the proposed structural construction form the basis for determining the stress imposed upon the existing structure. Power and Respondent agree that there are two acceptable methods for calculating and determining wind speed. The 1997 Standard Building Code ASCE 7-95 determines a basic wind speed from anticipated three-second gusts. Conversely, the Standard Building Code 1606.2 determines a basic wind speed from anticipated fastest mph wind velocity within a given time period 10, 15, 20, 30 or 50 years. According to Respondent, had Power based his computation upon Standard Building Code 1606.2 standard of the fastest wind in a given yearly cycle instead of the anticipated three-second gusts, he could not conclude the supporting beams were overstressed. Respondent's use of the 1606.2 standard, though calculations are not shown in the plans, is an acceptable engineering practice. DOAH Case No. 01-2396PL - 397 Leeward Drive, Clearwater, Florida. According to Matonte, after the City of Clearwater recommended Respondent to him as an engineer who had provided acceptable plans in the past, he met with Respondent several times to discuss hiring him for a project on his home at 397 Leeward Drive, Clearwater, Florida. According to Tom Chaplinsky, City's Plan Reviewer, no one from the City recommended Respondent to Matonte. I find Chaplinsky's testimony credible. According to Respondent, he met and discussed with Matonte the drafting of a steel beam to support additions to a swimming pool on a property located in Seminole, Florida, not in Clearwater, Florida. Matonte drove Respondent to the Seminole property and Respondent completed, as requested, a survey and the property and drew the steel beam, charging Matonte $150.00 for the single sheet drawing. Matonte's testimony on the above points is not credible. First, the City of Clearwater did not refer Respondent to him for professional engineering services. Second, a company, not Matonte, owns the residence at 397 Leeward Drive, Clearwater, Florida. Third, Matonte's company, William Michael & Associates, Inc., does own residential property in Seminole, Florida. The three sheets of plans for the 397 Leeward Drive property contain the signature and seal of the Respondent. However, Matonte drew 26 sheets of plans that he signed and sealed in the presence of Tom Chaplinsky and from which the City filed a complaint against him for signing and sealing as a professional engineer when he was not so authorized. The record does not reflect the specific sheets of plans Matonte presented to the City which were subsequently reviewed and rejected by Olson, another reviewer. Respondent takes the position that he did not sign and seal plans for a Clearwater property. His explanation is that "someone else, probably Matonte, using his seal, signed and sealed blank sheets during one of the several visits to his office and later cut and paste structural drawing on those sheets". I find Respondent did sign and seal the three sheets of plans at issue. Power, in his review of those three sheets of plans, opined that those plans did not contain details to explain Respondent's use of the "130-MPH" wind uplift resistance. From this basic premise, Power's opinion on this issue is the same as found in paragraph No. 11 herein above. Power's conclusions, however, are slightly different from his conclusions on the 276 Bayside Drive, Clearwater, Florida, property. Here he concludes that were a builder to rely solely on the drawings, the resulting construction would constitute a threat to life and [public] safety. At first blush, it would appear Petitioner's above allegation has substance. Taken as a whole, in the opinion of Power, once he decided the 130-MPH wind resistance notation was made over the crossed-out 102-MPH notation, finding deficiencies was a matter of review when using computation based upon anticipated three-second gusts. To this proposition, Respondent correctly contended that if Power used the 130-MPH wind resistance computation based upon fastest wind velocity over a period of years, his results would show the structure to be sufficient. Upon consideration of the fact that both Respondent and Power each have over 40 years engineering experience; that Respondent has worked almost exclusively on one/two story dwelling in Pinellas County for the past 10 to 15 years using the 1606.2, Standard Building Code, for the 130-MPH computation without complaint, compared to Power's most recent engineering practice has been primarily that of an expert witness; Power's testimony on this point is less than convincing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered finding that Respondent, Shields B. Clark, is guilty of negligence in the practice of engineering and violated Section 471.033(1)(g), Florida Statutes, as set forth in Counts I and II in DOAH Case No. 01-2290PL, finding that Shields E. Clark is not in violation of Section 471.033(1)(g) as set forth in Count III of DOAH Case No. 01-2290PL and Count I of DOAH Case No. 01-2396PL, and dismissing Count II of DOAH Case No. 01-2396PL. Further, giving Shields B. Clark a written reprimand, placing him on probation for two years under such terms and conditions as the Board deem appropriate, imposing a fine of $2,000.00 and assess no cost related to the investigation and prosecution of theses cases. DONE AND ENTERED this 19th day of December, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2001. COPIES FURNISHED: Brian A. Burden, Esquire Post Office Box 767 Tampa, Florida 33601-0767 Natalie A. Lowe, Executive Director Board of Professional Engineers Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Douglas D. Sunshine, Esquire Florida Engineers Management Corporation 2507 Callaway Road, Suite 200 Tallahassee, Florida 32303-5267 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Don Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 20 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot, approximately 95 feet by 87 feet (approximately 8,250 square feet), is empty and is the only vacant lot on the Gulf of Mexico in this area. Until some three years ago this area had been zoned RM-28, which provided for higher density development than does RM-20. The area from Kendall Street north six blocks to Somerset Street bounded on the east by Mandalay Avenue and on the west by the Gulf of Mexico is the only section of Clearwater fronting on the Gulf which is zoned RM-20. This area was built up over the years before zoning controls were in existence, through less restrictive zoning, and down to the present, so there are few buildings in this part of Clearwater Beach that meet current zoning requirements. Petitioner owns the property abutting Pierson's property to the east. The building on that lot was constructed many years ago, before setback lines were established, and balconies on this building extend to the property line; leaving zero setback. The Coastal Construction Control Line, seaward of which construction is prohibited, runs through Pierson's property so as to delete the seaward 5/8ths of Petitioner's property on which a building can be erected. The tidal plane in this area is 13 feet (although evidence was presented at the board hearing that this was being increased to 16 feet). The height of Pierson's property above sea level is five feet, accordingly the ground floor of a dwelling constructed on this lot must be eight feet above ground (or 11 feet if the 16-foot tidal plane is adopted). Maximum building height for a triplex, which is here proposed, is two and a half stories, or 25 feet above sea level. With the ground floor eight feet above ground, a two- story building cannot be erected without a height variance. Pierson proposes to construct a two-story triplex with a lower unit in which he will live comprising approximately 2,200 square feet and the upper story containing two 1,100 square- foot apartments to be occupied as rental units. To accomplish this, he has requested a height variance of six feet to 31 feet, if such a variance is required for a platted lot. Zoning density is consistent with the construction of the triplex proposed. However, zoning regulations require a lot with a minimum width of 100 feet and lot area of 10,000 square feet for the construction of a triplex. Pierson's lot meets neither of these requirements. Several witnesses testified in opposition to the requested variances at the Board hearing.
