The Issue The issues to be determined are whether Respondent Roy Voss is entitled to an exemption from the requirement to obtain an Environmental Resource Permit (“ERP”) and entitled to “consent by rule” to use sovereignty submerged lands to install five mooring pilings next to his existing dock in Stuart, Florida.
Findings Of Fact The Parties Petitioner Pirtle is the owner of real property located at 4622 Southeast Boatyard Drive, Stuart, Florida. The property includes a dock that has been operating as a commercial marina for over 20 years. Respondent Voss is the recipient of the authorizations which are challenged by Petitioner. Voss owns the real property located at 4632 Southeast Boatyard Drive, Stuart, Florida, which is located immediately south of Petitioner’s property. Voss has a private dock. The Pirtle and Voss properties are riparian lots on Manatee Pocket, which connects to the St. Lucie River. Both lots have 50 feet of waterfront. The Department is the state agency with the power and duty to regulate construction activities in waters of the state pursuant to chapter 373, Florida Statutes. The Department also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on certain construction activities on state sovereignty submerged lands under chapter 253. The Pirtle and Voss Docks The Pirtle dock is 101 feet long and is T-shaped. The Pirtle marina operates under a 1991 sovereignty submerged land lease issued by the Board of Trustees. The lease authorizes up to ten boat slips within the leased area. Pirtle has five boat slips on the south side of his dock, which are configured so that boats are moored perpendicular to the dock, usually with their bows pointed toward the Voss dock. The Voss dock is 120 feet long and has an L-shaped waterward end. The “L” extends to the south, away from the Pirtle dock. The Voss dock was built sometime after the Pirtle dock. Voss has moored several boats at his dock, including a 26-foot Grady White with an 8.5-foot beam, a 38-foot boat with a 15-foot beam, and a 42-foot boat a 15-foot beam. The 38-foot and 42-foot boats have each been moored along the north side of the Voss dock (nearest the Pirtle dock) in the past. The parties did not dispute the location of an imaginary “riparian line” running parallel to and generally equidistant between the Pirtle and Voss docks. Before Voss installed the five pilings which are the subject of this case, boats maneuvering into or out of the slips that are on the south side of the Pirtle dock (“the south slips”) often crossed over the riparian line. The Mooring Pilings On August 29, 2012, Voss applied for the authorizations to install five mooring pilings spaced 20 feet apart on the north side of and parallel to his dock. Voss said he intended to use the pilings to moor a new 38-foot boat with a 15-foot beam. Voss could use three pilings to moor a 38-foot boat. The mooring pilings are also farther from Voss's dock than needed to moor a boat with a 15-foot beam. Voss originally proposed to install the pilings on the riparian line. The Department reviewed the proposal and asked Voss to set the pilings back about three feet farther away from the Pirtle dock. The Department issued the authorizations to Voss on October 25, 2012, and he installed the five mooring pilings where the Department directed him to, about three feet inside the riparian line and 20 feet from his dock. The closest distance between the T-shaped end of the Pirtle dock and the nearest mooring piling is about 8.5 feet. Therefore, only boats with a beam (maximum width) less than 8.5 feet can pass this point when attempting to maneuver into or out of the south slips. Pirtle found out about the Voss pilings early in December 2012. He filed his petition for hearing with the Department on December 20, 2012. The timeliness of the petition was not disputed. The authorizations were issued by the Department without first conducting a site inspection to determine what effect the mooring pilings would have on the ability of boats to maneuver into and out of Pirtle’s south slips. After Pirtle filed his petition, four Department employees went to the site in a 21.5-foot boat with a beam of about 7.8 feet. The pilot of the boat, Jason Storrs, had difficulty maneuvering into and out of Pirtle’s south slips and had to be assisted by the other Department employees who stood in the boat and pushed off from the pilings. Without their assistance, the boat would have bumped into the pilings. An inexperienced boater would have greater difficulty attempting to enter or leave one of the south slips. It would be more difficult to maneuver a boat in or out of one of the south slips if Voss had a boat moored along the pilings. In windy and choppy water conditions, a person attempting to maneuver a boat into one of the south slips would risk damage to the boat and possible injury. The proximity of the mooring pilings to the slips on the south side of the Pirtle dock creates an unsafe condition. It is the practice of the Department to treat boating conditions that create a potential for damage to boats and injury to boaters as a “navigational hazard.” Voss's mooring pilings create a navigational hazard. The difficult and unsafe situation created by the mooring pilings would be obvious to boat owners considering whether to lease one of the south slips at the Pirtle marina. The south slips would be unattractive to potential customers of the marina. Pirtle’s ability to operate the south side of his marina is substantially impaired by Voss's pilings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny the exemption and consent by rule. DONE AND ENTERED this 27th day of September, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 27th day of September, 2013.
The Issue Petitioners challenged the Department of Environmental Protection's (Department) preliminary Final Order, alleging that Petitioners committed the "unauthorized clearing and destruction of dunes and dune vegetation for the purposes of constructing a roadway seaward of the coastal construction control line [(CCCL)] without benefit of a permit." The ultimate issue is whether the work Petitioners performed was seaward of the CCCL, and if it was, whether there was a violation of Amended Permit FR-563 and Section 161.053(2), Florida Statutes.
Findings Of Fact Parties Petitioner, Ben Withers, Inc., is a Florida corporation doing business in the State of Florida. Petitioner, Ben Withers, is the President and owner of Ben Withers, Inc., and a resident of Panacea, Florida. (Henceforth, Ben Withers and Ben Withers, Inc., are referred to collectively as "Mr. Withers," unless otherwise noted.) Mr. Withers is a licensed general contractor. The Department is the executive agency of the State of Florida operating pursuant to, among others, Chapter 161, Florida Statutes, and Chapter 62, Florida Administrative Code. Pursuant to Chapter 161, Florida Statutes, the Department administers the CCCL program for construction activities seaward of the CCCL. Coastal Construction Control Line Program The Department's Bureau of Beaches and Wetland Resources regulates construction and excavation activities seaward of the CCCL. The Department is responsible for determining and setting the CCCLs. The CCCL is a scientifically established line pursuant to Section 161.053, Florida Statutes. By definition, the CCCL "defines that portion of the beach-dune system subject to severe fluctuations based on a one-hundred-year storm surge, storm waves, or other predictable weather conditions." Rule 62B-33.002(13), Florida Administrative Code. Construction and excavation activity seaward of the CCCL is regulated by Section 161.053, Florida Statutes, and Rule 62B- 33, Florida Administrative Code. Mr. Withers admitted that he is aware of Department rules regarding beaches and coastal construction and is also aware that excavation seaward of the CCCL requires a permit unless it is otherwise exempt, and that he had this knowledge prior to the present case. Accessing the Pepper Project Site Under Amended Permit FR-563 Dog Island is a barrier island south of and about three miles off the coast of Franklin County, Florida. The island is approximately eight miles in length. There is no bridge to the island. The Pepper project site is on the far western end of the island. The Gulf of Mexico borders the island on the south and St. George Sound borders the island to the north. The most common way to access the Pepper site with any vehicle carrying equipment and materials, would be to use a boat or barge to a marina area (Tyson's Harbor) near the center of the island, or a private dock, and then traverse west down the middle of the island or down the beach itself, or a combination of the two. The Easy Street Easement is an easement area for a roadway running east and west through Dog Island. The parties agree that Easy Street and the Easy Street Easement are the same. The Easy Street Easement had been an unpaved roadway years before; part of the roadway was still visible in May 2001, and other parts had been covered with vegetation. There are portions of Easy Street and Easy Way east of the cul-de-sac which are visible roadways. See, e.g., Department Exhibit 13. Additionally, parts of Easy Street are seaward of the Department's CCCL (e.g., in the narrows area which is west of the cul-de-sac) and other parts are landward of the CCCL. See, e.g., Finding of Fact 29. Pursuant to its statutory duty, in 1996, the Department set the reference monuments R-158-R-160 for the CCCL on the west end of Dog Island. These monuments are in the narrows area of the island and run west to east. The CCCL is not visible on the ground. A surveyor is needed to locate the line. The alleged violation in this case was committed between R-158 and R-160, part of the narrows area. The Easy Street Easement on Dog Island runs both north and south from The Nature Conservancy cul-de-sac and then runs westerly to the west end of Dog Island. The CCCL Permits On October 21, 1999, the Department issued Permit FR-563 to Leonard Pepper, the property owner, for the construction of a single–family dwelling and for structures associated with the dwelling on the west end of Dog Island. Permit FR-563 contained Standard Permit Conditions that required in part: (1)(a) all construction or activity for which the permit was granted be carried out in accordance with the plans and specifications which were approved by the Department as a part of the permit; (1)(b) all construction or activity authorized under the permit shall be conducted using extreme care to prevent any adverse impacts to the beach and dune system; and (1)(g) existing beach and dune topography and vegetation shall not be disturbed except as expressly authorized in the permit. Permit FR-563 did not authorize the start of construction until a construction access plan to the Pepper project site was approved, in order to minimize impacts to the beach and dune system. On October 16, 2000, Amended Permit FR-563 was issued with a Notice to Proceed Withheld. The Amended Permit also contained Special Condition 1.5 which required the submittal and approval of "[a] construction access plan showing the route and timing for bringing equipment and materials to the site, in order to minimize impacts to the beach and dune system." The Department was concerned about the manner in which equipment and materials would be brought to the project site without causing further harm to the system. Amended Permit FR-563 did not expressly or implicitly authorize excavation or grading seaward of the CCCL in any area on Dog Island off of the project site and footprint of the house. In late 2000, Mr. Withers became involved with the Pepper project after Amended Permit FR-563 (with the Notice to Proceed Withheld) was issued on October 16, 2000. Part of Mr. Withers' job responsibility was to prepare and submit a construction access plan to the Department for approval. The Department does not normally require an access plan because most job sites are located in areas with established roads for ingress and egress. Here, there was no established road to and from the project site. The access plan was necessary in order to determine how Mr. Withers would transport equipment and materials to the Pepper project site on the west end of Dog Island due to the site's remote location and the absence of an established roadway to the site. Mr. Withers expected that materials and heavy equipment, including cranes, would be off-loaded at Tyson's Harbor, located approximately in the middle of Dog Island, and transported by vehicle to the project site along the access plan route. He expected to only transport pilings using the beach access route. On March 15, 2001, Mr. Withers submitted an access plan which described the route Mr. Withers would traverse by vehicle with construction equipment and materials. See Endnote 1. The Easy Street Easement starts at the east end of the island as an established roadway. Proceeding in a westerly direction, Easy Street comes to a dead-end at a cul-de-sac landward of the CCCL. The access plan authorized Mr. Withers to access the job site using part the Easy Street/Easy Street Easement (starting on the east end of the island) going north from The Nature Conservancy cul-de-sac, then heading in a westerly direction just south of the Ausley house (west of R-158 and just landward of the CCCL) and across the narrows area and continuing in a westerly direction along the northern shoreline and in southerly direction toward R-154. The access plan then authorized Mr. Withers to proceed in a westerly direction over the middle portion of the west-end of the island, then in a southerly direction toward the project site.1 The access plan showed a route both landward and seaward of the CCCL along the narrows area. See Department Exhibit 4- orange line then blue line after the orange circle on the west-end of the island. As described by Mr. McNeal of the Department, the access route is seaward, for the most part, of the CCCL from R-157 to R- 159 (running west to east) and landward of the CCCL east of R-159. The Department described the damaged area of 5,305.6 square feet (Department Exhibit 11A, insert "B") caused by Mr. Withers as east of R-159 and seaward of the CCCL and south of the access plan route. See also Finding of Fact 35. However, it appears that a portion of Easy Street, between R-159 and R-160, is seaward of the CCCL. Compare Department Exhibit 12 with Department Exhibits 4, 11A, and 13. During a pre-hearing deposition, Mr. Withers marked in pink the route he took through a portion of the narrows area which coincides with the portion of Easy Street between the approximate locations of R-159 and R-160, depicted on Department Exhibit 12. See Finding of Fact 43. (Mr. Withers had the Easy Street Easement staked prior to doing any work on Dog Island. See Findings of Fact 33-35.) The damaged area appears to coincide with this portion of Easy Street, and seaward of the CCCL. See Department Exhibit 11A. The access plan authorized Mr. Withers to drive (vehicular traffic) his equipment over the easement following the route depicted on the access plan until he arrived at the project site. See Endnote 1. The Department expected that travel along the access route would cause minimal and temporary damage or destruction to the topography, so the plan was considered acceptable. The access plan did not authorize excavation of a roadway within the route, including the narrows area, nor did it contemplate any other activity over or around a dune other than what might occur as a result of driving.2 The Department understood that Mr. Withers would be driving daily over the access plan route to the project site. The Department assumed that trucks would be used to transport equipment and materials. The Department did not differentiate among vehicles which could be used, including large trucks. On April 11, 2001, the Department issued a Notice to Proceed to Mr. Pepper to begin construction of his single-family dwelling in accordance with Amended Permit FR-563. The access plan is part of the Amended permit. Shortly after the Notice to Proceed was issued, The Nature Conservancy advised the Department of concerns it had with the access plan. As a result, on April 24, 2001, there was a meeting in Apalachicola, Florida, convened by the Department and attended by other interested governmental entities and private persons, including Mr. Withers. The purpose of the meeting was explore other possible ways and means of access by Mr. Withers to the Pepper project site.3 No resolution was reached during the meeting and the access plan previously approved by the Department remained effective. The previously issued Notice to Proceed was also in effect. The Violations Mr. Withers hired Kenneth Greenwood of Garlick Environmental Associates to perform a threatened/endangered species inspection, plant and animal, on an approximately 30-foot wide strip on the Easy Street Easement (approximately 1,800 feet) being utilized in Mr. Withers' access plan and within the narrows area. See Department Exhibit 13-yellow markings. On May 2, 2001, Mr. Greenwood performed the inspection within the easement that Mr. Withers had staked out by a land surveyor, approximately 15 feet on either side of the stakes. He found no threatened/endangered species. (The CCCL was not staked by Mr. Withers because, according to Mr. Withers, the Department did not ask him to locate the CCCL with stakes.) The access route depicted by Mr. McNeal in orange on Department Exhibit 4, which runs east of R-159, is similar to the description of the staked areas east of R-159, described by Mr. Greenwood and marked in yellow on Department Exhibit 13. See Findings of Fact 28-29. Both areas are landward of the CCCL. However, the 5,305.6 square foot damaged area is east of R-159 and is seaward of the CCCL. Mr. Greenwood described the area where he performed his investigation as being "relatively undisturbed," "relatively stable," having no vehicle tracks, and he stated that there were areas of bare sand as well as areas of "natural beach dune vegetation." He described the area as "relatively flat with some small amounts of mounding." The pictures taken by Mr. Greenwood within the staked easement on May 2, 2001, as part of his investigation, do not depict any vehicle tracks. After Mr. Greenwood completed his investigation on May 2, 2001, he observed Mr. Withers landward of the CCCL on a front-end loader and north of the cul-de-sac, proceeding west along the Easy Street Easement scraping off the top layer of soil and heading in a westward direction. Mr. Greenwood believed that the activity performed by Mr. Withers at this time was consistent with unpaved, road construction. According to Mr. Greenwood, the width of the scraped area appeared to be approximately the width of the bucket on Mr. Withers' front-end loader. Mr. Withers stated that he was doing minor grading landward of the CCCL with a John Deere 310-E front-end loader tractor when Mr. Greenwood was present on May 2, 2001. This tractor had a front bucket (approximately seven to eight feet wide) and a backhoe for excavating dirt on the back-end. Mr. Withers described the work which he performed when Mr. Greenwood was present as moving out and smoothing off the top of the sand landward of the CCCL in order for his equipment to get through. Mr. Withers also stated that he made areas in the easement seaward of the CCCL smooth by using the bottom of the bucket of his front-end loader to move sand around. Mr. Withers mentioned that he was very concerned that he needed to have the pathway he was utilizing in the access plan marked and smoothed off and fairly level. He believed the access plan authorized him to smooth off the areas on the access route. Mr. Withers stated that he had to have the access path level because he was bringing a self-propelled, 25-ton crane down the access path and they are top heavy and can get off balance, topple over, or get stuck. Mr. Withers described two types of work that he performed in the Easy Street Easement as: 1) clearing landward of the CCCL that required scooping and moving dirt, and 2) smoothing several areas seaward of the CCCL, just east of R-158 to around R- 160. An area of excavation damage seven feet seaward of the CCCL (beginning approximately 130 feet east of R-158) and an area 41 feet seaward of the CCCL (beginning at R-159, continuing east approximately 500 feet) are located within the area Mr. Withers stated he did some "smoothing off areas," again, east of R-158 and continuing east toward, but west, of R-160. Mr. Withers believed that Amended Permit FR-563 allowed him to use the Easy Street Easement in the access plan "to do . . . whatever was necessary and . . . needed to get [his] equipment, access [his] equipment down to the job site." He also admitted smoothing the areas. Mr. Withers also stated that Amended Permit FR-563 granted him permission to access the west end of Dog Island. Therefore, there was no need for him to locate the CCCL. Mr. Withers referred to the easement in the access plan as turning into a good pathway after he smoothed the areas. Mr. Withers stated that it was his "intention to gain access to the west end of Dog Island through a legal easement and an existing roadway" and that he wanted to utilize it. Mr. Withers testified "that he knew a lot of roads on Dog Island crossed seaward of the [CCCL]" in response to questioning whether he knew at the time of his performing work on the easement, whether or not the Easy Street Easement crossed seaward of the CCCL. He knew he was going to be traversing "fairly close" to the CCCL. Mr. Withers stated he did not knowingly violate the conditions of the Amended Permit. Mr. Withers was aware of the Department's permit requirements for work seaward of the CCCL when he performed his access work in the easement on Dog Island. However, Mr. Withers never had a survey done to figure out where the CCCL was located. Notice of the Alleged Violations Around May 2, 2001, the Department received a complaint that excavation was occurring seaward of the CCCL on Dog Island in the narrows area of the Easy Street Easement. On May 4, 2001, John A. Poppel, William Fokes, and Phil Sanders went to Dog Island on behalf of the Department to investigate the complaint of excavation in the narrows area seaward of the CCCL. On May 4, 2001, Mr. Poppel performed a survey of the narrows area and located the CCCL. He located monuments R-158- R-160. Department Exhibit 11. As a product of his survey, Mr. Poppel was able to depict the newly excavated roadway or pathway in relation to the CCCL. Mr. Poppel calculated that one area of damage was seven feet seaward of the CCCL and consisted of 503.8 square feet of damage and a second area of damage was 41 feet seaward of the CCCL and consisted of 5,305.6 square feet of damage. These square foot areas represent only the disturbed areas seaward of the CCCL, not the entire area between the CCCL and the Gulf of Mexico. Both areas of damage are within the area where Mr. Withers stated that he smoothed out the sand. As part of the May 4, 2001, investigation, William Fokes, an Engineer I with the Department, took photographs of the damaged areas and prepared an inspection report. Mr. Fokes' report indicates that an approximately 11-foot wide roadway or pathway had been cleared by excavation with the most seaward extent of the road being about 40 feet seaward of the CCCL. In addition, the report states that small dunes and beach vegetation had been destroyed. Mr. Fokes described the damage as excavation or grading done by some kind of machine, which cut and uprooted vegetation and pushed sand to the side as it leveled the ground. Mr. Fokes testified that the damage did not appear to be caused by merely traversing the area. Mr. Sanders, an engineer with the Department, processes CCCL permit applications and supervises Mr. Fokes, a field engineer. On May 4, 2001, Mr. Sanders observed the narrows area in question and confirmed that it looked like a "graded road" in that "[i]t appeared in the road bed that vegetation was gone and had been pushed out to the side, graded away," and that there was "excavation" seaward of the CCCL. Mr. Sanders stated that this activity did not comply with the approved access plan. On May 7, 2001, a Notice of Violation was issued to Mr. Withers for the "the unauthorized clearing and destruction of dunes and native vegetation for the purpose of constructing a roadway seaward of the coastal construction control line." Mr. Greenwood's photographs taken May 2, 2001, when compared with Mr. Fokes' photographs taken May 4, 2001, show that no discernable roadway or pathway was present landward or seaward of the CCCL in the narrows area at the time of Mr. Greenwood's inspection on May 2, 2001. This is evident when comparing Mr. Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with Department Exhibit 16g taken on May 4, 2001--the roadway or pathway present in the May 4, 2001, photo is absent in the May 2, 2001, photograph, and the vegetation has been removed from part of the area. Comparing Mr. Greenwood's photograph, Department Exhibit 15b, taken May 2, 2001, with Department Exhibits 16c and d, taken on May 4, 2001, also shows that the roadway or pathway was not present on the narrows portion of the Easy Street Easement at the time of Mr. Greenwood's inspection. The previously mentioned pictures, which were used for a comparison, were taken by two different people on separate dates, and from approximately the same locations. Also, Department Exhibit 16j was taken 250 feet east of R-159 and within the narrows area, facing east which shows clearing approximately 40 feet seaward of the CCCL. On May 14, 2001, at the request of the Department, Ken Jones, a principal engineer with Post Buckey et al., performed a damage assessment of the narrows portion of the Easy Street Easement which was seaward of the CCCL. Mr. Jones has a bachelor's degree in civil engineering and a master's degree in physical oceanography. Mr. Jones was familiar with the narrows area having been to Dog Island for recreation during the past 20 years and as a Dog Island property owner for the last three years. Mr. Jones described the narrows area as relatively flat and located between the St. George Sound to the north and the Gulf of Mexico beaches to the south. Between these two areas, the land is undulating sand and fairly consistent vegetation. At the time of Mr. Jones' damage assessment, he determined that a road had been cut through the vegetative portion of the dune of the narrows. Mr. Jones observed cut roots and a majority of the vegetation destroyed. Mr. Jones stated it appeared that the damage was caused by a vehicle with a blade on the front. The result was the road sat down in the sand approximately four to six inches. Mr. Jones stated that the work appeared to have been recent because distinct edges were still present. Mr. Jones took photographs and compiled an inspection report as part of his damage assessment. Mr. Jones testified that the damage "was pretty consistent from both landward and seaward of the [CCCL]." The pictures labeled Department Exhibits 18a1 and 18a2 depict a level pathway or roadway barren of vegetation seaward of the CCCL. Department Exhibit 18a4 is a photograph of a typical vegetated dune. Mr. Jones took this picture in order to have a general idea of what the vegetation coverage was in order to get an idea from a cost-estimating perspective. Mr. Jones's cost estimate for repairing the damage to the narrows area seaward of the CCCL, was approximately $7,500.00.4 Mr. Jones calculated the $7,500.00 by making an estimate of what it would cost to buy coastal vegetation, and by estimating what it would cost to employ laborers to hand rake the sand back into position and to plant the vegetation. Administrative Fine and Damages Jim Martinello, an environmental manager in charge of enforcement and compliance with the Bureau, used Mr. Jones' damage assessment estimate for informational purposes in assessing the damages amount for the narrows area. Mr. Martinello calculated the administrative fine and damages in accordance with Section 161.054, Florida Statues, and Rules 62B-54.002 and 62B-54.003, Florida Administrative Code. Rule 62B-54.002, Florida Administrative Code, provides that the Department shall assess fines for willful violations of, or refusing to comply with, for example, Section 161.053, Florida Statutes, and the fine should be sufficient to ensure immediate and continued compliance. In determining the actual fine within the range, the Department shall consider the offender's past violations, if any, and other aggravating or mitigating circumstances. Aggravating circumstances include prior knowledge of rules. Mitigating circumstances may be considered. Id. Mr. Withers had knowledge prior to the issuance of Amended Permit FR-563 of Department rules regarding permit requirements for construction activities seaward of the CCCL. On October 4, 1996, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible unauthorized construction seaward of the CCCL. This matter was resolved by entering into a consent order. On October 29, 1997, Mr. Withers, on behalf of Ben Withers Construction Company, was issued a warning letter for possible permit violation seaward of the CCCL. On November 13, 1997, Mr. Withers was issued a warning letter for possible unauthorized construction seaward of the CCCL. On October 27, 2000, Mr. Withers wrote a letter to Mr. McNeal indicating that he believed that the Easy Street Easement on Dog Island heading south from The Nature Conservancy cul-de- sac, then west to the west end of Dog Island, is landward of the CCCL and, therefore, no permit was necessary to reopen and use the easement, but he would have a surveyor establish the control line prior to work commencing. On November 7, 2000, Phil Sanders replied by letter to Mr. Withers' October 27, 2000 letter, in which Mr. Sanders reminded Mr. Withers of the pertinent rules and laws and suggested that Mr. Withers have the CCCL surveyed. On December 20, 2000, Mr. Martinello sent Mr. Withers an advisory letter informing him that the area he traversed (on July 2000) on the south route of the Easy Street Easement from the cul- de-sac on Dog Island was considered to be a dune as defined by Rule 62B-33.002, Florida Administrative Code. However, Mr. Martinello further advised that the Department did not take any action because "the traversing [did not] cause any substantial damage, it was minimal damage." In regard to the present case, it is more than a fair inference that Mr. Withers had specific knowledge of the CCCL and the Department's laws and rules, and that he knew excavation was not authorized seaward of the CCCL. The information in the prior Findings of Fact was used by the Department, and specifically Mr. Martinello, to determine that the harm to the beach resource or potential harm was major, and the administrative fine assessed was $7,500.00. However, part of Mr. Martinello's determination was predicated on Mr. Jones' assessment that the site one narrows violation was approximately 700 feet in length when, in fact, the area was approximately 500 feet in length, which explains in part the disparity between a 9,800 square foot area and the proven 5,305.6 square foot area. See Finding of Fact 78 and Endnote 4. Even the additional amount of damage of 503.8 square feet for the site two narrows area, when viewed in the aggregate, is significantly less than Mr. Jones' assessment of damages by square feet. (Mr. Martinello used the Jones' assessment as a guideline. Mr. Martinello says that the mistake did not alter his decision, although he was unaware of the mistake until the final hearing. He also says that Mr. Jones recommended a higher damage amount than the $5,000.00 assessed by the Department in its preliminary Final Order. He did--$7,500.00 for 9,800 square feet of damage.) Grossly negligent or knowing violations of statutes and Department rules regarding coastal construction seaward of the CCCL, which result "in harm to sovereignty lands seaward of mean high water or to beaches, shores, or coastal or beach-dune system(s), including animal, plant or aquatic life thereon," shall be considered in determining damages. Rule 62B-54.003(1), Florida Administrative Code. Rule 62B-54.003(2), Florida Administrative Code, provides that a damage amount greater than the minimum amounts may be assessed to ensure, immediate and continued compliance and the Department may consider, e.g., the need for restoration and the damaged ecological resource. The Department determined that the violation was knowing based on the factors mentioned above. The Department also considered the need for restoration and the damage to ecological resources and whether the amount would ensure immediate and continued compliance. Id. The Department determined that there was harm to the resource and that it was major and knowing. The Department proposed to assess the minimum damage amount of $5,000.00. On January 11, 2002, the Department entered a preliminary Final Order for the unauthorized grading and destruction of dunes and dune vegetation seaward of the control line for the purpose of constructing a roadway. The amount assessed in the Final Order was $12,500.00, $7,500.00 in administrative fines and $5,000.00 in damages, as described above. As noted, there has been harm to the beach area resource seaward of the CCCL and the Department proved the need for restoration and the damage to the ecological resource. In mitigation, Mr. Withers' construction access plan was approved by the Department. The Department knew that Mr. Withers intended to use the access route, which ran seaward of the CCCL from approximately R-157 to R-159 (except for a small portion between R-158 and R-159) in the narrows area; that Mr. Withers planned to transport equipment and materials by truck using the access route and necessarily would traverse seaward of the CCCL; and that he would continuously use the access route until the project was completed. The actual damaged area is less than originally determined by Mr. Jones, thus the need for restoration reduced. Mr. Jones, without the benefit of a survey, estimated the total cost to restore the damaged area of 9,800 square feet to be approximately $7,500.00. The total square feet of damage proven in this proceeding is 5,809.4 square feet in the narrows area and the Department is requesting $12,500.00 in fines and damages. Based on an approximate ratio of square feet and dollars needed to restore, a damage assessment in the amount of $4,500.00 is appropriate. Balancing the aggravating and mitigating circumstances, a fine of $3,500.00 is appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: That a final order be issued adopting this Recommended Order; and Within 30 days of a final order being effective, Petitioners shall pay a fine of $3,500.00 and $4,500.00 in damages with the total amount of $8,000.00, to the Department of Environmental Protection. DONE AND ENTERED this 9th day of January, 2003, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2003.
The Issue Whether respondent committed gross negligence, incompetence, or misconduct in connection with the construction of the Lagos home; Whether respondent failed to properly supervise the job site activities during the construction of the home; and If so, whether respondent's license should be suspended or revoked, or whether some other penalty should be imposed.
Findings Of Fact At all times material to this complaint, respondent was a registered residential contractor in the State of Florida, having been issued license number RR0030014, and served as the qualifying agent for John C. Greer, Incorporated. Respondent is now a certified contractor holding license number CB-C035168. In December, 1984, or January, 1985, John C. Greer, Inc., completed construction of a residential home located at 13907 Shady Shores Drive in Tampa, Florida. The respondent was the qualifying agent for John C. Greer, Inc., during the construction of the home and as such was responsible for its proper construction. On September 28, 1985, approximately nine months after the home was completed, Peter N. Lagos and Carol B. Lagos signed an agreement to purchase the home from John C. Greer, Inc., for $225,048.80. Respondent was not involved in the sale of the home. Indeed, respondent had left John C. Greer, Inc., in late May or early June of 1985 and Cathy Greer, respondent's wife and a certified residential contractor, was in charge of the business operations. The home is a two-story house consisting of 2700 or 2800 square feet of living space and a two-car garage. The first floor is concrete block construction and the second floor is frame construction with cedar siding. At the rear of the house on the first floor there is a lanai, or porch, which is covered by a flat-deck roof system. One end of the flat-deck roof system serves a dual function. It is the roof for the lanai and for a portion of the breakfast nook which extends into the lanai, and it is the floor for the balcony, or deck, which is connected to the second floor master bedroom. Sliding glass doors provide access from the master bedroom onto the deck. The portion of the roof which also functions as a deck was installed and intended to be perfectly flat with a zero pitch so that the deck could be utilized. The remainder of the roof system has a slight pitch. Before purchasing the home, Mr. Lagos noted that there were one or two fist-sized holes in the lanai ceiling and smaller holes in the breakfast nook ceiling by the air conditioning duct. He also observed stains on the ceiling by the recessed lights in the breakfast nook. The second floor deck had standing water near the sliding glass doors and also in a corner of the deck. Mr. Lagos was advised that a sheetrock man would repair the holes and everything would be corrected. Mr. Lagos reinspected the home prior to closing and was apparently satisfied with the repair work that was done. The Lagos' closed on the house on October 23, 1985, and moved in the next day. On the first night the Lagos' were in their new home it rained and water came out of the air conditioning register and through the lights in the breakfast nook. Mr. Lagos contacted John C. Greer, Inc. to correct the problem. Repairs were made in the first week of November, 1985, and the leaking stopped. The Lagos' had no apparent problem with leakage between November of 1985 and December of 1986. At the end of December, 1986, there was a substantial amount of rain. Mr. Lagos noticed that the ceiling in the lanai started to show signs of strain and buckling, and intermittently a small amount of water would seep through the breakfast nook ceiling near the lights. Mr. Lagos notified the Greers of the problem. By December, 1986, when Mr. Lagos notified the Greers of the problem, John C. Greer, Inc., had been dissolved. The corporation had built its last house in 1985 and had been dissolved after the one-year warranty period on the homes built by the corporation had expired. Therefore, when the problem with the Lagos house occurred there was no corporation, no qualifying agent, no liability insurance and no workers compensation insurance. Since there was no way for the corporation itself to correct the problem, the Greers advised Mr. Lagos to contact some contractors and get estimates of what it would cost to correct the problem. 1/ Mr. Lagos contacted Joseph Belt and Glen Kirkland, who are both certified general contractors, to provide estimates for the cost of repair. However, the repair work was ultimately performed by George Phillipson in 1988 at no cost to the Lagos'. There has been no further leaking and Mr. Lagos testified that Phillipson did "a beautiful job." 2/ There were several potential causes of the leak: (1) water ponding on the second story flat deck lanai roof; (2) improperly installed flashing; (3) water intrusion through the cedar siding and the lack of a vapor barrier behind the cedar siding. Initially, it was thought that there might be a leak in the roof itself or that the leak was caused by improper drainage of water from the roof. In March of 1987, 3/ Mr. Peter Scott, a professional engineer, inspected the flat deck roof while he was at the Lagos home to perform other work. Although it hadn't rained for two or three days before Mr. Scott observed the roof, there was still standing water on the roof deck. Regardless of any leaking, standing water on a roof is a problem because eventually the water will cause the roof membrane to deteriorate. Whether the form of the roof construction is ridge, pitch or flat, water should run to a drainage point where it will be collected and conveyed to the ground. Mr. Scott was of the opinion that a contractor building a flat deck should be especially concerned about storm water drainage. Besides the eventual destruction of the membrane, if water continues to collect on a roof it can rise above the flashing and cause leaking. However, in this case there was no evidence to establish that the standing water ever rose to that level. Although the ponding of the water on the second floor roof deck presented a problem, it was not the cause of the leak. The roof was tested by flooding and no leaking occurred. Mr. Kirkland testified that it appeared that some flashing had been improperly installed However, Mr. Kirkland admitted that when he inspected the roof deck area, someone had already taken apart the wall section and flashing. Therefore, he did not necessarily observe the flashing as it originally had been installed. Mr. Belt, who had the cedar siding removed to make an inspection, testified that there was no problem with the flashing and that the flashing appeared to be in reasonable shape. Mr. Phillipson also found that there was no problem with the flashing. Other than Mr. Kirkland's testimony that some flashing had been improperly installed, which testimony is rejected, there was no evidence suggesting that there was a problem with the flashing. The evidence established that the leakage of water into the house was caused by rainwater coming through the cedar siding. The cedar siding was attached directly to the wood frame. Both Mr. Kirkland and Mr. Belt were of the opinion that a vapor barrier should have been installed behind the siding. A vapor barrier is a film or sheeting that is placed over the frame and above the flashing. However, there was no code provision requiring that a vapor barrier be used in conjunction with the siding; the only code requirement was that the wall be moisture tight. George Phillipson inspected the Lagos home in early January, 1988. He observed standing water about a half an inch deep in an area approximately two feet by three feet in one corner of the deck roof. There was some siding separation, and the ceiling of the lanai showed indications of leakage. The ceiling was made of sheetrock, or greenboard. There was a brown stain about a foot in diameter on the ceiling, and in front of it the tape seam had separated. Because there were no signs of buckling, which would have been present if there had been a great deal of water intrusion, Phillipson concluded that he should look for a minor defect or irregularity as the source of the leak. Phillipson removed a two-foot by four-foot section of the sheetrock and examined the area of leakage from below. He also had the roof pulled back to check the plywood base. The plywood showed no signs of damage and the integrity of the built-up roofing was good. From his investigation of the house, Mr. Phillipson concluded that the leak was due to water coming through the cedar siding. Mr. Phillipson was of the opinion that the cedar had shrunk to some degree causing the caulking at the joints to separate. In a driving rain, water could get through the siding and into the wall cavity. When the deck was constructed a sill was placed on the plywood, including the inside of the wall cavity, and nailed down. Mr. Phillipson concluded that the water coming through the siding worked its way down to a nail which had pierced the sill and plywood and dripped down through the nail hole to the ceiling below. Mr. Phillipson concluded that the standing water on the roof deck had nothing to do with the leak. The standing water was located across the deck, approximately ten feet from the area where the leak occurred. From the location of the standing water, Mr. Phillipson concluded that it might have been caused by a ceiling joist failing to settle. Phillipson explained that often a piece of lumber is slightly bowed. The board is placed with the arch up, so that the middle will be higher. Normally, the board will settle or level itself. Sometimes, however, due to a knot in the center of the board or some other reason, the board does not settle and the area above the middle of the board remains slightly elevated. George Phillipson's testimony regarding the cause of the leak was the most persuasive of all the witnesses. He examined the problem areas more thoroughly than either Mr. Kirkland or Mr. Belt and he provided an analysis of the problems. Mr. Kirkland didn't do an in-depth analysis of the problem, and there was no need for him to do so. Although he looked at the house and prepared an estimate for Mr. Lagos, he admitted that his estimate was not based on any analysis of what was necessary to correct the problems, but was based on "all the things that Pete [Lagos] had requested us to perform." (T-62) When Kirkland was asked whether all the work included in the estimate was necessary he responded, "It would have brought the house up to the standards that Pete was looking for. At the time he explained to me what he'd wanted . . . . I don't think that it would have been necessary to do that to correct just that leak problem, to do everything that the proposal had covered. But he did ask me specifically for that. He pointed out exactly what he wanted me to do." (e.s.)(T-64) Since Mr. Lagos told Mr. Kirkland exactly what was to be done, there would have been no reason for Mr. Kirkland to analyze the source of the leakage or the reason for the ponding. Indeed, at one point Mr. Kirkland indicated that the leak was coming from the area of the roof where water was ponding, and he also suggested that there was a problem with the flashing. The totality of the evidence shows that Mr. Kirkland was incorrect on both of these theories. Further, Mr. Kirkland admitted that his opinion that work had not been completed properly was based on information relayed to him by Mr. Lagos rather than his own observations. (T-55) Mr. Belt's and Mr. Kirkland's testimony concerning the correct pitch for the roof is not accepted. Mr. Belt was of the opinion that the roof was improperly constructed because it did not have a minimum slope of 1/4" to one foot. Mr. Belt believed that this slope was required by code. However, the code section requiring a minimum slope of 1/4" to a foot referred only to liquid applied coatings. With other roofing materials a zero slope is acceptable. A liquid applied coating was not used on the Lagos roof, and it was not improper to construct the roof with a zero pitch. Nevertheless, there was clearly a problem with the drainage on the roof. Although the roof was intended to be a flat roof with zero pitch, at least a portion of the roof had a negative pitch slope back toward the house. Water did not drain properly. Respondent testified that the amount of ponding fell within industry standards and testified that the Home Buyers' Warranty Booklet (REx.#1) and the Home Owners Warranty Corporation Insurance/Warranty Documents (REx.#2) were the commonly relied upon performance standards in the industry. However, the Home Buyers' Warranty Booklet states that "[s]tanding water on flat built-up roof" is a deficiency and that the construction standard is that "water should drain from flat built-up roof, with minimum collecting." The Home Owners Warranty document states that "[s]tanding water on flat roof" is a possible deficiency and that the performance standard is, "[w]ater shall drain from flat roof except for minor ponding immediately following rainfall or when roof is specifically designed for water retention." The ponding water on the roof deck was a persistent problem. Mr. Scott observed standing water two or three days after it had rained. There was water ponding on the roof when Mr. Lagos first looked at the house in 1985 and there was a standing pond of water on the roof when Mr. Phillipson inspected the house at the beginning of 1988. The area of negative pitch was observed by Mr. Kirkland and Mr. Belt. The standing water on the roof was a deficiency and did not meet construction performance standards. With closer supervision this deficiency could have been prevented or corrected. The other problem with the house was that it leaked. The leak was a minor leak and was sporadic. It did not cause any damage except the staining of the lanai ceiling. Had vapor barriers been installed behind the cedar siding, the leak probably wouldn't have occurred. Nevertheless, there was no requirement that vapor barriers be installed behind the cedar siding. Cedar is quite suitable for an exterior wall and normally would be sufficient in and of itself to prevent the intrusion of water. Further, the placement of a vapor barrier directly behind the cedar siding could result in the cedar deteriorating more quickly. At the time of construction, it was not foreseeable that the leak which ultimately occurred would occur. Therefore, the installation of the cedar siding directly over the studs does not reflect incompetence or negligence in the construction of the home. Respondent's practice was to be on every construction job for which he was responsible at least once a week. Although this amount of time, in the abstract, may be sufficient to properly supervise construction activity, in this case the construction activities were not supervised as closely as they should have been. Respondent's own testimony revealed that he was not fully aware of the manner in which the house was constructed. He stated that he did not "know for a fact" whether or not the siding was installed directly over the studs. (T-105) He stated that he had not seen it. Although respondent stated that there was an effort to ensure that the deck would be flat, so that it could be utilized to the maximum, it is apparent that respondent failed to supervise the work closely enough to ensure that there was no negative pitch to the roof and that water would drain properly. At the time of the hearing, respondent had been selected Home Builder of the Year in Hillsborough County by the 1200 member builders' association. There was no evidence that respondent had ever had any prior complaints made against him or any disciplinary action taken against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that respondent failed to properly supervise the job site activities of John C. Greer, Inc., in the construction of the Lagos home and reprimanding respondent for this offense. DONE AND ORDERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988.
The Issue The issue for determination is whether the Woodleys are entitled to a permit to construct a single family residence seaward of the Coastal Construction Control Line in Charlotte County, Florida. At hearing Petitioner presented the testimony of Thomas L. Jones, Albert Case Hine III (by deposition), and Sylvia S. Woodley. Petitioner had seven exhibits admitted into evidence and proffered two exhibits. Respondents presented the testimony of Sylvia S. Woodley and Erick J. Olsen. Respondents had five exhibits admitted into evidence. At the start of the formal hearing, Petitioner's Motion to Amend the Petition was granted with the agreement of the parties and the formal hearing proceeded under the Amended Request for Formal Hearing. The transcript of the proceedings was filed on January 2, 1986, and the parties filed posthearing Proposed Orders on January 14, 1986. A ruling has been made on each proposed finding of fact in the Appendix attached to and made a part of this Recommended Order.
Findings Of Fact Based upon the stipulation of the parties, the following facts are found: On September 25, 1984, Joseph V. Bell, Jr., on behalf of John C. and Sylvia S. Woodley, filed an application for a permit pursuant to Chapter 161, Florida Statutes, to construct a single-family dwelling to extend a maximum of 420 feet, a balcony to extend a maximum of 73 feet and installation of a septic tank and drainfield to extend a maximum of 35 feet, respectively, seaward of the coastal construction control line (CCCL) in Charlotte County, Florida, at approximately 536 feet south of the Department of Natural Resources' reference monument R-47. The application filed was deemed complete pursuant to rule by DNR staff on October 29, 1984. The application was withdrawn from the January 8, 1985, Governor and Cabinet meeting at the request of the applicant. This application was deferred from the March 19, 1985, Governor and Cabinet meeting with a motion for the Executive Director to submit a recommendation relative to the State acquisition of the property. The application was again considered at the May 7, 1985, Governor and Cabinet meeting and the Executive Director recommended acquisition of the Woodley property and surrounding area adjacent to the Don Pedro Save our Coast Project. With the concurrence of the Woodleys, the Governor and Cabinet deferred the request to February 1, 1986, to allow time for the land acquisition. On June 5, 1985, the Land Acquisition Selection Committee met to consider adding the proposed addition to the Don Pedro Island Complex Land Acquisition Project under the Save Our Coast Component of the State Recreation and Parks Land Acquisition Program. The Committee voted 5-1 against the land acquisition. The Executive Director again agendaed the application for consideration before the Governor and Cabinet, sitting as the agency head of the Department of Natural Resources, on July 2, 1985. The staff recommendation was for denial. The following additional facts were found based upon testimony and evidence presented at the formal hearing: The application was approved by the Governor and Cabinet on July 2, 1985, with the specific conditions that the structure be constructed in accordance with DNR's structural specifications (pursuant to Section 16B-33.07, Florida Administrative Code) and that the Woodleys agree not to armor their property in the future. The Woodleys have stipulated that they will comply with these conditions. DNR Final Order No. 3229 was issued by DNR on July 29, 1985, and incorporated the aforementioned conditions. The Woodleys have owned the subject property since 1956. The Petitioner, Thomas L. Jones, purchased the property adjacent to and landward of the Woodleys' property on June 28, 1985. Jones' witness, Dr. Albert Case Hine, III, whose testimony was offered by deposition, is a geological oceanographer studying modern shallow marine depositional environments and coastal geological systems. However, Hine was neither offered as nor accepted as an expert witness. According to Hine, the Woodleys' property could be threatened by future inlet activity. However, this opinion was based on a undated report which does not identify the author. Additionally, Hine has never visited the island or shoreline in question, has never studied Charlotte County, and based his opinion essentially on information provided to him by Jones. Therefore little weight is given to Hine's testimony. Erik Olsen was admitted as an expert in coastal engineering, coastal processes and the application of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Olsen has direct experience with Charlotte County and particularly the Knight Island Complex which includes everything from Stump Pass about five miles north, to Gasparilla Pass about three miles south of the Woodleys' property. He has reviewed historical data for that area spanning 120 years. Olsen has been on the Woodleys' property. Woodleys' property is not threatened by inlet activity which would result in the reopening of a pass adjacent to and abutting on the property. The single family residence proposed by the Woodleys will be located as far landward on their property as possible. The structure will have no adverse impact on adjacent properties and will pose no risk or danger to the general public or to the ecological system in the area of their property. The siting of the proposed structure complies with the provisions of Rule 16B- 33.07(1), Florida Administrative Code. The only risk of construction of the structure is being borne and will be borne by the Woodleys. The attendant risk is that of erosion. The shoreline adjacent to the Woodleys' property has eroded at the average rate of 4.9 feet per year over the past ten years. The rate is an average and takes into account differing rates of erosion and accretion during different time periods. For example, the erosion rate for May, 1974 to October, 1981 was 3 feet per year. As the result of a major storm, the erosion rate from July, 1982 to December, 1982 was 54 feet per year. The accretion rate for December, 1982 to September, 1983 was 20 feet per year and for September, 1983 to April, 1984 was up to 5 feet per year. The future erosion rate will be affected by various factors such as storms and a potential Corps of Engineers project. In the past at lea-et one other structure existed on a lot seaward of the Woodleys' property, but it has been either destroyed by storm action and erosion or removed with only the pilings remaining. Approximately 60 feet of the lot still remained between the Woodleys' lot and the shoreline in 1984. On or about November 6, 1985, approximately 40 feet of the lot remained between the Woodleys' lot and the mean high water line. On a survey performed by Giffels-Webster Engineering Inc., on November 6, 1985, the approximate thirty year erosion projection is approximately 20.5 feet seaward of the seaward limit of the Woodleys' property.
Conclusions The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The DNR administers the regulation of construction and excavation activities seaward of established Coastal Construction Control Lines (CCCL) pursuant to Chapters 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. Permits for construction seaward of the CCCL are issued by DNR upon application of the property owner and upon consideration of adequate engineering data concerning shoreline stability, storm tides related to shoreline topography, design features, potential impacts, the location of structures upon the beach-dune system and potential cumulative effect of the location of structures upon the beach-dune system. Rule 16B- 33.06, Florida Administrative Code. Rule 16B-33 05, Florida Administrative Code, purports to allow only activities seaward of the CCCL which are necessary and justified. In the present case the construction of the proposed single family residence is necessary and justified by the Woodleys' right and desire to enjoy the property which they purchased in 1956. The Woodleys submitted sufficient facts and data to meet the requirements of Rule 16B-33.06. The proposed structure is located as far landward on their property as possible in order to minimize the potential impact on the beach-dune system. It is concluded that the proposed structure is justified under Rule 16B-33.06. Rule 16B-33 07, Florida Administrative Code, sets forth the structural and-other requirements necessary for permit approval. As that rule relates to location of the proposed structure, it has been satisfied. The structure is also located so as to minimize any expected adverse impact on the beach-dune system. There are no expected adverse impacts on adjacent properties. As a condition of the permit, the structure will be designed and constructed to resist the forces associated with a one-hundred year storm event. The Woodleys have agreed to this condition and have had the necessary design modifications made in the plans for the structure. The single family residence proposed by the Woodleys will satisfy all of the requirements of Rule 16B-33.07. In summary, the Woodleys have met the requirements of Chapter 161, Florida Statutes, and Chapter 16B-33, Florida Administrative Code. They have established by the competent, substantial evidence that they are entitled to the permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order granting to John C. and Sylvia Woodley a permit for construction of a single family residence seaward of the Coastal Construction Control Line in Charlotte County, Florida, subject to the following conditions. That the structure be constructed in accordance with the structural specifications established in Rule 16B-33.07, Florida Administrative Code. That no permit be sought or issued for armoring of the subject property in the future. It is further RECOMMENDED that the Amended Request for Formal Hearing, filed by Thomas L. Jones, be DISMISSED. DONE and ENTERED this 27th day of January, 1986, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1986. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner 1. Adopted in substance in Finding of Fact 9. 2. Adopted in substance in Finding of Fact 16. 3. Adopted in substance in Finding of Fact 17. 4. Adopted in substance in Finding of Fact 10. 5. Adopted in substance in Finding of Fact 7. 6. Adopted in substance in Finding of Fact 6. 7. Adopted in substance in Finding of Fact 3. 8. Adopted in substance in Finding of Fact 5. 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 7. Rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent DNR Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 8. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 11 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 12 except as it recites testimony. Adopted in substance in Finding of Fact 15 except as it recites testimony. Adopted in substance in Finding of Fact 15 except as it recites testimony. Rejected as unnecessary. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 13 except as it recites testimony. Adopted in substance in Finding of Fact 14 except as it recites testimony. Rejected as unnecessary. Adopted in substance in Finding of Fact 15 except as it recites testimony.e-'~LR Adopted in substance in Finding of Fact 15 except as it recites testimony. Adopted in substance in Finding of Fact 18. Rulings of Proposed Findings of Fact of Respondents Woodleys Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in substance in Finding of Fact 7. Rejected as unnecessary. Adopted in substance in Finding of Fact 7. Adopted in substance in Finding of Fact 7. Rejected as argument and as constituting a conclusion of law. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 12. Adopted in substance in Findings of Fact 15 and 16. Rejected as conclusory and argumentative. COPIES FURNISHED: Andrew Grayson, Esquire 3900 Commonwealth Boulevard Tallahassee, Florida 32303 David P. Rankin, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 W. Kevin Russell, Esquire and Phillip J. Jones, Esquire 201 West Marion Avenue Suite 301 Punta Gorda, Florida 33950
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
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.
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
