The Issue Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer. Petitioner submitted application for the vacant position. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650 The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9, 10(in part), 11 Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part) COPIES FURNISHED: Cislyn Stephenson Emil Stephenson Qualified Representative 2298 September Street Melbourne, Florida 32935 Bill Walker, Esquire School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues are: (a) whether the accident on December 12, 1995, involving a shrimp trawler, the Atlantic Sun, resulted in a discharge of pollutants into the Atlantic Ocean and caused natural resource damages; and, if so, (b) what amount does Petitioner William A. Harden owe the Department of Environmental Protection for investigation costs incurred in investigating the break up of the Atlantic Sun and for natural resource damages resulting from the accident.
Findings Of Fact On December 12, 1995, the commercial fishing vessel, the Atlantic Sun, went aground on the south jetties in the Atlantic Ocean at the entrance to the channel of St. Mary's River. The shrimp trawler broke apart on the jetties near Fernandina Beach, Florida. Debris from the wrecked ship washed onto the beaches near the jetties. The United States Coast Guard (USCG) arrived at the scene of the accident and removed Roger Cummings, Captain of the Atlantic Sun, and Daniel Boone, an owner of the vessel, from the scene of the wreck. The USCG informed the Florida Marine Patrol (FMP) about the accident on December 12, 1995. Michael Lehman, FMP officer, met the USCG officers investigating the accident when they brought Captain Cummings and Mr. Boone to shore. Captain Cummings stated that the ship had 1200 to 1300 gallons of diesel fuel in its tanks when it hit the jetties. The water was too rough for Officer Lehman to investigate the accident scene that night. Officer Lehman and another FMP officer went to the site of the wreck on the morning of December 13, 1997. On his way to the accident scene, Officer Lehman's boat ran through a sheen of diesel fuel from Eagan's Creek to the end of the jetties. Officer Lehman found the Atlantic Sun upside down at the end of the rock jetties. There was a strong smell of diesel fuel at the site of the wreck. Diesel fuel ran down both sides of the jetties. The fuel was bubbling up on both sides of the wrecked ship. On December 14, 1995, the flow of fuel from the capsized vessel was still not contained. Officer Lehman estimated that approximately 500 gallons of fuel had been discharged into the ocean. He based this estimate on his personal observation at the accident scene, personal experience as an investigator of pollutant discharges, and witness statements. USCG officers estimated that the Atlantic Sun discharged 1,000 gallons of diesel fuel. The diesel fuel sheen on the water surface eventually affected a large area. It covered the entrance to St. Mary's River Channel from bank to bank. The fuel flowed west and inland from the ship wreck. It covered much of Cumberland Sound. It affected coastal waters from the accident site to Ft. Clinch State Park Beach and south approximately two miles. Special management areas which were affected are: Ft. Clinch State Park, Cumberland National Seashore, and Ft. Clinch Aquatic Preserve. By December 16, 1995, Officer Lehman could no longer see fuel coming from the area of the wreckage. By that time, the spilled fuel had dissipated. The accident occurred within one statute mile seaward of the coastline of the state of Florida. The two FMP officers worked a total of 18 hours during the course of their investigation. The cost to Respondent for the two officers' time was $244.80. The FMP officers used a single engine boat in their investigation for five hours. The single engine boat cost Respondent $100.00. They used a twin engine boat for six hours to conduct the investigation. The twin engine boat cost Respondent $240.00. The FMP officers drove a total of 76 miles in patrol vehicles. At $0.20 per mile, the total cost for mileage was $15.20. The FMP officer spent $5.00 developing pictures which were taken during their investigation. Respondent incurred clerical expenses during the investigation in the amount of $33.60. Respondent's total cost for the investigation was $638.60. Respondent assessed Petitioner with damages to natural resources. The damages were based on the total amount of pollutants discharged into Florida's coastal waters as a result of the Atlantic Sun going aground on the jetties. The amount of pollutants was 500 gallons of diesel fuel. Impact to special management areas was also taken into consideration in determining the natural resource damages. Respondent utilized a statutory formula to assess Petitioner with natural resource damages in the amount of $8,008.47. Respondent sent Petitioner a final agency action letter advising him of the total assessment in the amount of $8,647.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order assessing Petitioner $638.60 in investigative costs and $8,008.47 in natural resource damages. DONE AND ENTERED this 5th day of February, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1998. COPIES FURNISHED: Kisha R. Pruitt, Esquire Kathelyn M. Jacques, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Daniel Boone Boone and Harden Atlantic Sun Post Office Box 438 Darien, Georgia 31305 William A. Harden Boone and Harden Atlantic Sun Route 3, Box 3158 Townsend, Georgia 31337 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondent should have an administrative penalty imposed, take corrective action, and pay investigative costs for allegedly maintaining a sewage treatment plant in violation of applicable rules and statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Since 1969, Respondent, an active Florida corporation, has owned and operated a relatively small mobile home park (with around 55 mobile homes) at Two Tropic Wind Drive, Port Orange, Florida, known as Double D Mobile Ranch. In conjunction with the mobile home park, Respondent owns and operates a wastewater treatment plant (facility) for its residents. The facility is under the regulatory jurisdiction of the Department. Respondent's president is John D'Hondt, who is the only certified operator for the facility. On June 8, 2001, a Department representative inspected Respondent's facility and noted that Respondent had violated a number of statutes and rules. In accordance with Department protocol, on September 26, 2001, the Department sent Mr. D'Hondt by certified mail a "Noncompliance Letter" (First Letter), which identified the various violations and requested that Respondent respond within 14 days with a schedule of corrective action. Mr. D'Hondt received the First Letter but did not file a response. On February 27, 2002, a Department representative conducted a routine follow-up inspection of the facility. Mr. D'Hondt was present during the inspection. During the course of the inspection, the representative noted the following violations, some of which were repeat violations from the earlier inspection: Count I. The logbook on-site was not bound with numbered pages, and it did not contain the signature of the operators, as required by Florida Administrative Code Rule 62- 602.650(4). Count II. A copy of the operation and maintenance manual was not on-site, as required by Florida Administrative Code Rule 62-600.410(4)(f). Count III. A copy of the certified operator's license was not on site, as required by Florida Administrative Code Rule 62-620.350(8). Count IV. Respondent failed to submit Discharge Monitoring Reports from May 2001 through January 2002, as required by Florida Administrative Code Rule 62-601.300(1)(b). Count V. After effluent samples were collected and tested, the tests revealed that the Total Suspended Solids were 185 milligrams per Liter (mg/L), which exceed the permit limit of 60 mg/L for a single sample, in violation of Florida Administrative Code Rule 62-600.740(1)(b)1.d. Count VI. Advisory signs were not posted at the facility indicating the nature of the project area, as required by Florida Administrative Code Rules 62-610.418(1) and 62-610.518(1). Count VII. The percolation pond located adjacent to the plant had less than one foot of freeboard, in violation of Florida Administrative Code Rule 62-610.516. In addition to the foregoing charges, by its Count VIII, the Department seeks to recover investigative costs totaling not less than $750.00, which the Department claims were incurred during the investigation and processing of the Notice. On April 2, 2002, the Department sent Mr. D'Hondt by certified mail a second Noncompliance Letter (Second Letter) outlining the various violations and requesting that he respond within 14 days after receipt of the Second Letter with a schedule of corrective action. Although Mr. D'Hondt received the Second Letter around April 20, 2002, he failed to file a response. On July 1, 2002, the Department sent another letter (Third Letter) by certified mail to Mr. D'Hondt requesting a reply to the Second Letter previously sent in April. The Third Letter advised Mr. D'Hondt that if he wished to avoid an enforcement action, he should file a response within 7 days from receipt of the letter. Mr. D'Hondt received the Third Letter around July 20, 2002, but he failed to respond to either the Second or Third Letters. On January 15, 2003, the Department issued its Notice alleging that Respondent had violated various statutes and rules (as described in Finding of Fact 3) in seven respects. After an informal conference failed to resolve the matter, Respondent eventually filed an Amended Petition on February 18, 2004, contesting the validity of the charges. The Charges Because Respondent has acknowledged that the allegations in Counts I-VI are true, no further proof as to those matters is necessary. Accordingly, it is found that the charges in those Counts have been established. In Count VII, Respondent is charged with having "a freeboard of less than one (1) foot" in its percolation pond, as required by Florida Administrative Code Rule 62-610.516. ("Freeboard" refers to the area between the top of the water in the pond and the top of the surrounding berm.) Under that rule, "[p]ercolation ponds . . . shall be provided with an emergency discharge device to prevent water levels from rising closer than one foot from the top of the embankment or berm." This means that a facility operator must maintain at least one foot of separation between the water level in the treatment pond and the top of the berm. The purpose of maintaining this amount of separation is to prevent an overflow of treated liquids in the event of an extremely heavy rainfall or a catastrophic event. This is especially important here since Respondent's percolation pond (which is used to dispose of treated liquids from the facility) appears to be no more than 30 feet or so from several mobile homes. See Petitioner's Exhibit 3. Testimony by the Department inspector established that when the inspection occurred, there was less than one foot of separation on the right side of the pond, as corroborated by, and reflected in, Petitioner's Exhibit 3, a digital photograph of the pond taken during the inspection. Respondent's contention that a separation of at least one foot existed in the pond at the time of inspection has been considered and rejected in light of the credible contrary evidence. Therefore, the charge in Count VII has been established. The evidence supports a finding that the Department incurred at least $750.00 in investigative costs while conducting the inspection, performing tests, attempting to informally resolve the case, and issuing the Notice. This amount is based on the cost of the field and laboratory tests, the hourly compensation of the inspector, and the hourly compensation of the supervisor who reviewed the inspector's work. It also includes the time expended by Department personnel in attempting to informally resolve the matter and later issuing the NOV. See Petitioner's Exhibit 9. Therefore, the charges in Count VIII have been sustained. Under the statutory scheme in place, the violations in Counts I through VII call for an administrative penalty in the amount of $5,750.00. The derivation of this amount is found in Petitioner's Exhibit 7, which is a penalty computation worksheet. Mitigating Evidence Although he was given an opportunity to offer mitigating evidence at the final hearing, Mr. D'Hondt failed to present any evidence that the violations were caused by circumstances beyond his control or that they could not have been prevented by due diligence. While Mr. D'Hondt did testify at final hearing that he has reduced the occupancy rate in the mobile home park to 70 percent to satisfy Department flow capacity requirements, this by itself is insufficient to warrant a reduction in the penalty.
The Issue The issue is whether a Consent Order executed by Respondents on March 25, 2010, and by the Department of Environmental Protection (Department) and the Board of Trustees of the Internal Improvement Trust Fund (Board) on April 1, 2010, is a reasonable exercise of the Department's enforcement authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding A lengthy history precedes the execution of the Consent Order and can be summarized as follows. Shannon Sue, LLC (Shannon Sue) is a Florida limited liability company and the current owner of property located at 18261 Southeast Federal Highway, Tequesta, Florida, just north of the Martin County-Palm Beach County line. The property consists of 0.482 acres, is on the western bank of the Indian River Lagoon, and is adjacent to the Jensen Beach - Jupiter Inlet Aquatic Preserve, an Outstanding Florida Water. A commercial marina has been located on the upland property since at least the mid or late-1980s. The Department has the power and duty to administer and enforce Chapters 373, 376, and 403, Florida Statutes (2009),2 and the rules promulgated thereunder, including Chapter 62-780. The marina lies within the District Office's regulatory jurisdiction. MABE is a Florida limited liability corporation with its principal place of business in Martin County. It owns a small parcel of property located at 18245 Southeast Federal Highway, Tequesta, which is adjacent to, and immediately north of, the marina. Edmund Brennen is an officer and director of MABE and has resided at that site for twenty years. Besides his residence, Mr. Brennan has two boat slips for rent and two floors of commercial office space on the property, which is zoned commercial/residential. Over the last twenty years, MABE has had tenants who have historically used the dock and the aquatic preserve for fishing, boating, and other recreational activities. Although currently vacant, MABE plans to continue to lease its property to residential or commercial tenants. Shannon Sue currently leases the marina property to Jupiter Hills Lighthouse Marina, Inc. (JHLM), a Florida corporation with its principal place of business in Martin County. JHLM has operated the marina since at least the 1990s. The property was owned by John and Barbara Canonico (husband and wife), as Trustees of the Barbara Canonico Revocable Trust, from 1988 until November 21, 2002, when title was transferred to Shannon Sue. John Canonico is an officer, director, and registered agent of JHLM and Barbara Canonico is a manager and registered agent of Shannon Sue. The record reflects that a dock and slips were located on the property for a number of years. On July 29, 1992, JHLM applied for a wetland resource permit to expand the existing dock to provide for additional mooring and to substantially reconfigure the existing dock. On December 13, 1994, the Department issued an Intent to Issue Permit No. 432170499 (Permit) to JHLM allowing the expansion of the existing dock from 6 to 18 slips. See Petitioner's Exhibit 1.3 The Permit was eventually issued on July 1, 1996. See Petitioner's Exhibit 2. The Permit included a number of general and specific conditions, including Specific Conditions 8 and 12, which required the installation of a stormwater exfiltration system to provide treatment for the first inch of runoff, and prohibited any boat maintenance or repair activities except those that were "minor" or necessitated by "emergency conditions." There is no record of any objection to the issuance of the permit being filed by any person. Although authorized to do so, for unknown reasons, JHLM did not make the changes authorized by the Permit. In March 1998, it submitted a new application for a Standard General Environmental Resource Permit (ERP) seeking to expand the number of wet slips from six to twelve and to reconfigure the existing dock. See Petitioner's Exhibit 3. One-half of the slips would be used by powerboats while the other six would be for sailboat mooring only. Under the new permit, the applicant would be allowed to remove the existing docks and construct a new access dock and terminal platform and add six new finger piers. On August 16, 1999, the Department approved the application and issued Standard General ERP No. 43-0114838-001. See Petitioner's Exhibit 4. Like Specific Condition 8 in the 1996 permit, Specific Condition 14 was included in the new permit for the purpose of improving water quality and required the applicant to "install a stormwater exfiltration system" to "provide treatment for [the first inch of runoff from] all paved surfaces on the property." The system was to be constructed and certified as complete by a registered professional engineer before the permit became effective; it was to be cleaned monthly or after major rainfall events and inspected annually by a professional engineer; and annual reports were to be filed each year by that engineer. Also, Specific Condition 24 prohibited any boat repair work other than minor or emergency repairs. Acting on behalf of the Board, which has the responsibility for overseeing state owned lands, the Department also entered into a five-year lease with the Canonico Trustees (Trustees) to use sovereign submerged lands. See Petitioner's Exhibit 5. Among others, Condition 1 of the lease specifically prohibited the mooring of commercial vessels at the facility. Id. Again, the Permit was not opposed by any third party. In 2001, Chris Baker, identified as a "purchaser of the site" but more than likely a prospective purchaser, authorized a firm known as Environmental Matters to conduct a "Phase I and Limited Phase II Environmental Site Assessment" of the property. The consultant's Environmental Assessment Report (Report), dated June 2001, indicated, among other things, that there were concentrations of metals and petroleum hydrocarbons on the site; that some of the concentrations exceeded Department standards; that the soils were "contaminated throughout the Site"; an abandoned water well and septic tank system were on the site; and that a 1,000-gallon aboveground unleaded gasoline storage tank had been installed in 2001 without the required secondary containment, but no leaks were observed. See Petitioner's Exhibit 38. The report noted that during the assessment, Mr. Canonico acknowledged that all types of boat maintenance took place on the site, including scraping boat hulls, and that the waste was discharged (or allowed to run off) into the basin. On March 14, 2003, former counsel for MABE sent a three-page letter to the District Office advising that since JHLM received a permit in 1994, the marina had been operated in a manner that constituted violations of the permit conditions and lease. The letter described in detail what the author perceived to be violations of the law. In addition, a copy of the 2001 Report was enclosed with the letter. The letter asked that the Department initiate an enforcement action against the marina and that the unlawful practices be halted. A Department memorandum dated March 28, 2003, indicates that the letter and Report were reviewed by a District employee, who considered the Report to be incomplete in certain respects, and that "without appropriate measurement tools and additional information, it is not possible to state that the site is contaminated based upon the sludge analysis." See Petitioner's Exhibit 37. The memorandum conceded, however, that further investigation was needed and that the report "provides an indication of a petroleum related discharge." Id. The memorandum recommended that JHLM be given a copy of the Report and the District Office memorandum, that JHLM submit a Discharge Reporting Form pursuant to Rule 62-761.900(1), that the marina's stormwater drain be cleaned, and that JHLM contact the District Office to discuss the voluntary implementation of Best Management Practices for on-site operations. Id. Because the Report "[had] no laboratory reports and no method detection limits," the District Office decided not to conduct any follow- up inspections of the marina property at that time. In response to the Department's memorandum and Report, on June 3, 2003, Mr. Canonico filed a Discharge Report Form indicating that there was "no known discharge" on the property. He also enclosed a copy of a letter he signed on December 7, 1994, presumably in conjunction with his application for Permit No. 432170499, in which he described the maintenance schedule for the facility's stormwater exfiltration system and agreed to conform to that schedule, as generally required by Specific Condition 7 of the original permit. Also, on August 5, 2003, the facility's contractor advised the District Office by letter that "[t]he work authorized in Permit #43-0114834-001 has [been] commenced and completed in full, with the exception of the demolition of the finger pier, which we seek to remain." See Petitioner's Exhibit 6. This was probably in reference to the facility's intent to file an application to modify its 1999 ERP. There is no indication that any further action was taken by the Department in response to the MABE complaint. In November 2003, JHLM filed an application with the District Office seeking to modify its 1999 ERP by allowing an existing 4-foot by 24-foot finger pier to remain in place (the 1999 ERP required that it be removed), and to install a retractable wheelchair ramp to allow vessel access for wheel- chair bound individuals. The application was unopposed. On January 22, 2004, the Department approved the application. See Petitioner's Exhibit 7. Except for the addition of three specific conditions (32, 33, and 34), all other terms and conditions remained the same. Id. The finger pier was intended to be used for passenger loading of rental vessels stored on the uplands. Even though ownership of the property had been transferred to Shannon Sue in 2002, on August 26, 2004, the Department, on behalf of the Board, renewed submerged land lease 43003006 with the Trustees for another ten years, or until August 16, 2014. See Petitioner's Exhibit 8. The renewed lease contains the same terms and conditions as the 1999 lease, including the condition that the facility be restricted to mooring recreational vessels. On July 3, 2008, MABE, through its former counsel, sent the Department a verified complaint against the marina under Section 403.412, Florida Statutes (2008). See Petitioner's Exhibit 25. The complaint sought to compel the Department to take action to address alleged violations of the ERP conditions and the submerged land lease. Under the statute, an agency has 30 days after receipt of a complaint in which "to take appropriate action" against the alleged violator, or the complaining party may then institute judicial proceedings. Following receipt of the complaint, on July 10, 2008, representatives of the District Office conducted an inspection of the marina property. The case manager was Donald H. Keirn, Jr., an Environmental Specialist III, who is responsible for, among other things, compliance enforcement in a large, heavily- populated multi-county area. Another inspection was conducted on July 22, 2008. During those visits, Mr. Keirn noted significant evidence of major boat repairs on the premises, freshly spilled oil, and hull scraping. In fact, Mr. Canonico admitted to Mr. Keirn that the facility had been performing major boat repairs since the original permit had been issued. Based on these inspections, on July 29, 2008, the District Office initiated an enforcement action by sending a Warning Letter to the Canonicos advising them that Specific Conditions 11, 14, 15, and 24 of the ERP had been violated, and that the lease of submerged lands must be transferred to the current owner. See Petitioner's Exhibit 9. Condition 11 required the placement of channel markers; Conditions 14 and 15 required an exfiltration system to be constructed, certified by a professional engineer as complete as indicated on the permit drawings, maintained for the life of the system, cleaned monthly, and inspected by a professional engineer annually with follow-up annual reports; and Condition 24 prohibited repairs to vessels other than minor or emergency repairs, so as to prevent the discharge of hazardous materials into the aquatic preserve. The record does not show what action, if any, Respondents took after receiving the Warning Letter. Frustrated by Respondents' inaction, and their repeated disregard of Permit and Lease conditions over the years, in the fall of 2008 MABE hired an outside consulting firm (E Sciences, Inc.) to collect and analyze samples of soil and water from both the MABE property as well as Shannon Sue's property. (Authorization to enter Shannon Sue's property was pursuant to a court order.) The report was completed on October 16, 2008, and concluded that since the 2001 assessment was performed, the concentrations of petroleum and metals had increased. It further concluded that the marina activities during those years had adversely impacted the soil and sediment at both the marina and MABE's adjacent property. See Petitioner's Exhibit 37. A copy of the report was provided to both the District Office and Shannon Sue. After receiving the report, on November 14, 2008, the District Office staff conducted another inspection to "identify any potential hazardous waste material discharge(s) or source(s) of contamination at the property." The staff found evidence of leaking containers, an engine "bone yard" along the fence line with the MABE property, unlabeled containers, and stains under the fuel tank. The inspection essentially confirmed the findings of E Science, Inc.; accordingly, the District Office concluded that a Site Assessment Report (SAR) under Chapter 62- 780 was necessary in order to determine the extent of contaminants on the property. A SAR assesses and describes the extent of contamination and makes recommendations as to how to address it. On February 24, 2009, the District Office sent a letter to the Canonicos, as registered agents for Shannon Sue and JHLM, advising them that "contaminants may have been released or discharged into the environment." The letter required Shannon Sue and JHLM to initiate a site assessment within 60 days, and to file a SAR that complied with the requirements of Chapter 62-780 no later than July 13, 2009. See Petitioner's Exhibit 26. The District Office subsequently extended the due date for the SAR to October 1, 2009. By letter dated April 24, 2009, the Department also advised the Canonicos that an "ongoing investigation," preliminary to agency action, revealed the possible mooring of commercial vessels at the dock on two occasions, which was prohibited under the submerged land lease. (Based upon visual sightings confirmed by photographs, MABE had earlier advised the District Office that this occurred on a frequent basis, but subsequent inspections by the District Office resulted in only two observations of commercial vessels at the dock.) The letter further reminded the Canonicos that, pursuant to Specific Condition 24, boat repairs with the potential to discharge pollutants or hazardous substances into the adjacent waters were prohibited under the ERP. See Petitioner's Exhibit 21. As noted above, during the July 2008 inspections, Mr. Canonico admitted to Mr. Keirn that there were "multiple violations" of that condition, including multiple discharges of oil and grease associated with engine repairs. Assuming that the matter could be resolved by consent order, on November 18, 2009, Mr. Keirn submitted for review by his supervisor a "Civil Penalty Authorization Southeast Florida District," which outlined the nature of the violations observed and proposed penalties for those violations. See Petitioner's Exhibit 12. By now, additional violations had been observed through more inspections, including, as noted above, the mooring of commercial vessels at the marina; a failure by JHLM to construct an "exfiltration trench" as required by the original 1996 permit, file annual reports for that system, and regularly maintain the system; a failure to notify staff of the commencement of construction; and a failure to maintain used oil storage containers within secondary containment structures and to legibly label them. The Department has issued an Administrative Directive entitled Settlement Guidelines for Civil and Administrative Penalties (Settlement Guidelines), effective July 17, 2007, which contains guidelines that "are intended to provide a rational, fair and consistent method for determining the appropriate amount of civil and administrative penalties the Department should seek from responsible parties in settling enforcement actions." See Department Exhibit 3. They are intended only "for internal staff guidance," and the District Office is authorized "to deviate from these guidelines . . . when doing so will result in better compliance and better capability for carrying out the mission of the agency." Id. at Relying in part upon that document, Mr. Keirn recommended a $27,500.00 civil penalty for violations of permit conditions, $2,500.00 for the lease violation, and $500.00 for investigative costs, or a total civil penalty of $30,500.00. The Penalty Rationale is found on page 3 of that exhibit. This recommendation was approved by the District Office Director on December 11, 2009, and was incorporated into a proposed consent order. As pointed out by Mr. Keirn, the purpose of the proposed settlement was not to collect fines, but to restore and protect the environment. By email dated January 11, 2010, Mr. Keirn provided the Canonicos with a copy of the draft consent order. See Petitioner's Exhibit 13. He asked that they review it and be prepared to discuss the violations and penalties the following week. A series of emails between the parties ensued over the next month or so for the purpose of discussing the cited violations and related penalties. Mr. Keirn's email also advised them to "get [the SAR] in ASAP" by mail, hand-delivery, or email. The next day, January 12, 2010, the Canonicos submitted a SAR to the Department. On January 26 and February 1, 2010, the Canonicos sent emails to Mr. Keirn providing their explanation for each violation "in the hope of reducing the penalties outlined in the Consent Order." See Petitioner's Exhibits 14 and 15. One explanation for violating the prohibition against major repairs (Specific Condition 24) was a statement that the Canonicos believed that engine repairs, scraping of boat hulls, and the like were "minor" repair work. Mr. Keirn noted in an email to his supervisor that the Canonicos' proposed "amounts are seriously too low[,]" that "the statements are skewed to their position," and that "[the explanations] are not a logical reason for reduction." See Petitioner's Exhibit 15. By letter dated March 29, 2010, the Department advised the Canonicos that the SAR submitted on January 12, 2009, contained a number of deficiencies, that additional work must be undertaken, and that an Addendum to the SAR must be submitted within sixty days, or by the end of May 2010. See Petitioner's Exhibit 28. Around the same time that the Department requested an Addendum to the SAR, on March 25 and April 1, 2010, Respondents executed a Consent Order to resolve all outstanding violations. John and Barbara Canonico signed the Consent Order on behalf of the non-agency Respondents. In general terms, the Consent Order noted that Respondents collectively had failed to comply with the ERP conditions in the following respects: they failed to construct the stormwater system in accordance with the permit; they failed to maintain the stormwater system, have it inspected by an engineer on an annual basis, or have an engineer file annual reports; they repeatedly conducted non-minor repairs, maintenance, and painting of vessels resulting in unauthorized discharges of contaminants; they failed to install channel markers; they failed to notify the Department of the ownership transfer to Shannon Sue; they failed to submit written notice to the Department at least 48 hours prior to the commencement of construction of the project; they failed to limit the use of the marina to the mooring of recreational vessels; and they failed to properly contain or maintain the used oil disposal storage containers within a secondary storage structure. See Department Exhibit 2 at 3. In addition, the Consent Order noted that based upon the E Science, Inc. report, there were concentrations of total recoverable hydrocarbons in soils that would reasonably leach into groundwater; that a polluting condition had occurred; and that Respondents had failed to submit a SAR by the October 1, 2009 deadline. Id. at 4. Finally, the Consent Order noted that Shannon Sue had failed to obtain the required lease since acquiring ownership of the property in 2002. Id. Rather than imposing the $30,500.00 penalty originally recommended by Mr. Keirn, as a result of negotiations between the parties, the Department agreed to reduce the penalties in the Consent Order to $17,750.00 as settlement of the matter, including $500.00 in costs and expenses for investigating the matter. The penalties were to be paid in installments, with the first installment of $5,000.00 due immediately. This installment has been paid. The Consent Order required additional corrective action, the filing of a SAR, and the obtaining of a lease by Shannon Sue within certain timeframes. Because the Department's primary goals when resolving enforcement actions are remediation and avoiding protracted litigation rather than collecting fines, it is not unusual for a final consent order to have a lower civil penalty than that originally proposed. As explained by a Department witness, in this case its goals were (a) to avoid protracted litigation that would delay the implementation of corrective actions; (b) to require Respondents to quickly assess and begin the cleanup of contamination; (c) to restore and protect the environment as quickly as possible; and (d) to require Respondents to remove and contain all activities on the property that are prohibited by the Permit and Lease. All of these considerations were taken into account in arriving at the terms and conditions of the final Consent Order. Immediately after the Consent Order was executed, MABE timely filed its Petition challenging it on numerous grounds including a failure by the Department to address all violations in the Consent Order; a failure to recognize continuing violations; a failure to impose an adequate penalty; a failure to incorporate language into the Consent Order to ensure that all conditions will be met; and a failure to consider all relevant information at the time the Consent Order was executed. By letter dated June 29, 2010, the Department advised the Canonicos that no response to its March 29, 2010, letter had been received, and that the SAR Addendum had not yet been filed. The letter noted that even though the Consent Order had been challenged, which "placed the timeframes contained therein in a 'proposed' status," the SAR Addendum was overdue and that it must be submitted "immediately." See Petitioner's Exhibit 29. The Canonicos did not respond to this letter. At hearing, a Department employee interpreted the language in the June 29 letter to mean that until this proceeding has been concluded, the fine and corrective action are temporarily stayed. Apparently, the Canonicos have assumed the same thing and have not performed any remedial action or paid any further penalties while this action is pending. Rationale for the Consent Order The Consent Order addressed the violations described in Finding of Fact 26, supra, and required Respondents to pay a civil penalty of $2,000.00 for their failure to construct the stormwater system in accordance with the Permit. There was no negotiated reduction or increase in the $2,000.00 amount. This amount was based on a provision in the Environmental Litigation Reform Act (ELRA) codified in Section 403.121, Florida Statutes. That statute prescribes the penalties that must be imposed when the Department pursues administrative remedies for violations of Chapter 403. A Notice of Violation (NOV) must be issued to trigger the ELRA process. In this case, the ELRA process was not required since a NOV was never issued, but the Department elected to impose that penalty. The Consent Order requires Respondents to repair the stormwater system and submit to the Department an as-built certification form signed and sealed by a professional engineer that the system meets or exceeds the requirements of the permitted activity. In essence, Respondents are required to re-build the system and certify that it is built consistent with the Permit. No water quality data was introduced indicating any degradation of water quality at the marina from the exfiltration system not being built according to the Permit. To address Respondents' failure to maintain the stormwater system, inspect it, and submit reports to the Department, enforceable conditions were added to the Consent Order, including the filing of reports that the Permit did not previously contain, and a stipulated penalty of $100.00 per day for each day they fail to submit the required reports. The Consent Order requires Respondents to pay a civil penalty of $3,500.00 for their failure to maintain the stormwater system, inspect it, and submit reports to the Department. This amount was reduced in negotiations from an initial amount of $7,000.00. Exercising its discretion, the Department did not consider economic gain by Respondents in assessing the penalty. As noted earlier, the Department's primary goal in negotiating the Consent Order was to avoid a long and uncertain litigation process that would delay an enforceable order requiring Respondents to immediately implement a Chapter 62-780 waste assessment and cleanup. In order to address the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina in violation of the Permit, the Department included language in the Consent Order that specifically defined a "major repair," which was not included in the existing Permit. This will make enforcement easier by clarifying any ambiguity regarding what activities are prohibited. It also required that any such activity must be conducted off-site, an additional requirement that was not included in the existing Permit. The Consent Order assessed a penalty of $5,000.00 for the finding that Respondents were conducting repairs and maintenance of vessels at the upland portion of the marina. This amount was obtained using the Settlement Guidelines. Under the Penalty Matrix in that document, which classifies violations at three levels of potential for harm (major, moderate, and minor), the violation was identified as major, resulting in an amount of $10,000.00. This amount was later reduced to $5,000.00 during negotiations. However, the Department achieved its goal of binding Respondents to an enforceable agreement that would require them to immediately implement a Chapter 62-780 assessment and cleanup. In order to address the violation that Respondents failed to install channel markers, the Consent Order contained a provision that required them to apply for the required permits and install the markers within 30 days of receipt of the permits. The Consent Order also contained a stipulated penalty paragraph where Respondents would pay $100.00 per day for each day of failing to comply with the marker requirements. The Department is not precluded by the stipulated penalties from pursuing any statutory remedies or other penalty options available to it. The Consent Order assessed a $750.00 penalty for Respondents' failure to install the channel markers, which was less than the original proposed fine of $2,000.00 based on ELRA guidelines. To avoid uncertain and costly litigation, however, and to get Respondents under an enforceable agreement to implement a Chapter 62-780 assessment and cleanup, the Department reduced the penalty. In order to address the finding that Respondents failed to notify the Department of its ownership transfer to Shannon Sue, the Consent Order required payment of $250.00. Although ELRA guidelines specified a $1,000.00 penalty, this amount was lowered during negotiations to avoid protracted litigation and to get Respondents under an enforceable agreement to implement Chapter 62-780. The Consent Order also requires submission of a $555.00 processing fee along with supporting documents for assignment of the lease to the proper party. In addition, a penalty of $500.00 was assessed for failure to obtain the required lease after ownership transfer, along with stipulated penalties of $100.00 per day for failure to do so. For Respondents' failure to notify the Department within 48 hours prior to commencing construction at the marina, there is no corrective action required. However, the Department assessed a $250.00 penalty, which was lowered during negotiations from the ELRA penalty of $1,000.00 for the reasons expressed above. For Respondents' unauthorized mooring of commercial vessels, the Consent Order requires a penalty of $2,500.00, which was based on a second violation under Rule 18-14.002(4). Although MABE submitted an affidavit, dated photographs, and testimony to establish multiple violations of the rule, the Department opted to rely only upon the two violations that its inspector observed. For Respondents' used oil violation, the Consent Order requires removal of all containers, material, or equipment at the marina that handle or contain petroleum or hazardous substances greater than one quart in quantity, unless they are maintained in their original container or an independent and secondary containment system which is designed to contain discharges to the environment and is secure from the weather. The assessed penalty of $2,000.00 was lowered from the ELRA penalty of $4,000.00 during negotiations for the reasons expressed above. To address the finding that a polluting condition had occurred at the marina and a SAR was not timely submitted, the Department negotiated an enforceable agreement that requires Respondents to commence and complete all tasks required under Chapter 62-780 within certain timelines. A penalty was not assessed because the Department desired to get Respondents under an enforceable agreement to immediately implement the assessment and cleanup corrective actions. In addition, by not imposing a fine, the violator has more resources to assess and remediate any contamination, which is often a very expensive undertaking. Under Rule 18-14.002, a person is subject to a fine of up to $10,000.00 for each offense constituting a knowing refusal to comply or a willful violation of the provisions of Chapter 253, Florida Statutes. The Department may impose fines not to exceed $2,500.00 for the first offense; otherwise, approval of the Board is required. Subsequent offenses carry a fine of $1,000.00 to $10,000.00. In this case, the Consent Order imposed a $2,500.00 fine for violation of the Lease and a $500.00 fine for violating Section 253.77, Florida Statutes. Neither fine was shown to be unreasonable under the circumstances. The penalty amounts, plus $500.00 for Department costs, were mistakenly summed as $17,750.00 in paragraph 25 of the Consent Order. The correct amount is $17,250.00. In summary, the Consent Order was issued to settle existing outstanding violations of law and requires Respondents to pay penalties, reimburse Department costs, and take corrective measures. It also establishes a framework for compliance. Taking into consideration all of the circumstances, the terms are a reasonable exercise of the Department's enforcement discretion. Having incurred substantial expenditures in legal fees and site assessment costs in attempting to bring its neighbor into compliance (which probably total much more than the civil penalties assessed against Respondents), and waiting years for the Department to take action, MABE is understandably dissatisfied with many of the terms and conditions of the Consent Order. One of MABE's concerns is that given Respondents' history of failing to comply with ERP and lease conditions for more than a decade, they will not comply with the assessment and remediation requirements of Chapter 62-780. However, the Consent Order is an enforceable agreement that compels immediate compliance with those rules. The Consent Order spells out in clear terms the ability of the Department to seek the judicial imposition of damages or civil penalties, or other appropriate relief, for any violations of the Consent Order. Because of Respondents' prior conduct, which amounted to a clear disregard of permit terms and conditions, it is presumed that the Department will respond quickly to reported violations, if any occur, and take appropriate action. MABE also questions the adequacy (and accuracy) of the penalties. As explained in the Conclusions of Law, this issue is a matter solely within the discretion of the agency. In the same vein, MABE contends that the District Office did not take into account all of the violations that have occurred over the years, made mistakes in calculating the penalties, and failed to consider the fact that Respondents have continued to violate certain Permit and Lease conditions since the enforcement action began. Although some violations were not addressed, some errors in calculating penalties were made, and in some instances multiple violations were counted as a single violation for purposes of calculating a penalty, the Consent Order requires that the violator undertake corrective actions that are designed to remediate all prior violations, strictly comply with new terms and conditions, and subject it to stern penalties should future violations occur.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order ratifying and approving Consent Order OGC No. 08-1823 as final agency action of the Department. DONE AND ENTERED this 4th day of November, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2010.
The Issue The issue is whether Respondent, Ben A. Leasure, should have a $3,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly illegally filling 0.17 acres of wetlands contiguous with the Withlacoochee River (River), a Class III water, on land located in unincorporated Hernando County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the owner of an approximate 5-acre parcel of land located at the intersection of Olivet Drive and State Road 50 (5345 Olivet Drive) in unincorporated Hernando County, Florida. The property is also known as Parcel Identification Number R09-123-21-1110-00J0-0010. In broader geographic terms, the property lies just east of Interstate 75, west of U.S. Highway 301, and just west-southwest of Ridge Manor, a small community in Hernando County. The western boundary of the parcel is approximately 500 feet east of the River, a Class III Outstanding Florida Waterbody (OWF), which meanders through the area. See Fla. Admin. Code R. 62- 302.700(9)(i)41. In November 1971, Respondent purchased his property and on a later undisclosed date built a residence. According to Department Exhibit 24, which is a letter authored by Respondent in 1987, he first began filling the floodplain on the western part of his land "probably" in 1971, or just after he purchased the property. Historical aerial photographs of the site indicate that sometime before 1984, he constructed a pond just north of his house, apparently to be used for fishing, and by 1992 he had constructed a second, smaller pond just south of the larger pond. On February 3, 1986, the United States Army Corps of Engineers (Corps) sent Respondent a Cease and Desist Order in the form of a letter in which it advised Respondent that he had placed a "considerable amount of fill material" in wetlands adjacent to the River; that such filling was in violation of the federal Clean Water Act of 1977; that legal action would be taken if further filling occurred; that he must reply within 15 days indicating that he had complied with the terms of the letter; and that within the same timeframe he must provide information concerning the public and/or private need for the work, the effects on the surrounding area, and any other relevant information. By letter dated March 12, 1986, Respondent responded to the Cease and Desist Order and stated that prior to 1977 the land had been changed from wetlands to usable farmland, that his land did not connect to the River, and that there were no natural waters on his property that connected to state or federal waters. A follow-up letter was sent by the Corps on February 26, 1987, in which the Corps advised Respondent that he could resolve the violation "by removing all unauthorized fill material" and restoring the area. He was also told that in lieu of doing this, he could file an application for an after- the-fact permit authorizing the filling. A copy of a Joint Application for Permit was attached to the letter. On March 7, 1987, Respondent replied to the Corps' letter and stated that his land did not connect with any other waterbody; that he had been filling his property since 1971 without objection by anyone; that he had a "hard time understanding all these rules and regulations"; and that he questioned why the Corps was causing him "so much trouble for the last couple of years." Respondent never filed an application for an after-the-fact permit nor did he receive a reply to his letter. After an "Unauthorized Wetland Alteration Field Investigation" was conducted by the Southwest Florida Water Management District (District) sometime in 1992, by letter dated November 3, 1992, the District advised Respondent that it appeared the "wetland in question was disturbed prior to October, 1984" and that any filling done before that date was exempt from its jurisdiction; that it appeared that other dredge/fill work had been performed on the same wetland since that date; that Respondent's claim that the area was being used for agricultural purposes was not supported by any evidence; that Respondent's activities constituted a violation of Chapter 373, Florida Statutes; and that all illegal activity must be ceased immediately. The disposition of further contacts between the District and Respondent, if any, are unknown. Against this backdrop, on August 16, 2002, the Department's Tampa District Office received a complaint from the District stating that Respondent had illegally filled wetlands on his property. (The record does not show why the District waited almost ten years to refer the complaint to the Department.) In response to that complaint, and as a precursor to issuing a formal notice of violation, on August 20, 2002, the Tampa district office sent Respondent a warning letter indicating that a violation "may exist on [his] property" and requesting that he contact the Department to arrange a meeting "to discuss this matter." By mutual agreement, an inspection of the property was scheduled for September 5, 2002. Because a Department representative became unavailable just before the inspection, the Department did not appear at the property on the scheduled date or notify Respondent that the inspection had been cancelled. The following day, September 6, 2002, Department personnel were in the area and appeared unannounced at Respondent's property. However, no one was home and they did not inspect the property. Several weeks later, Department personnel again visited the site but could not gain access. Because Respondent was unwilling to grant access to his property, on April 17, 2003, the Department obtained an inspection warrant from the Circuit Court in Hernando County authorizing an inspection of Respondent's property. On April 22, 2003, seven Department employees inspected the property. Based upon plant species and hydrological indicators found on the property, it was established that the northwestern corner of Respondent's property lay within the surface water floodplain of the River and constituted wetlands, as defined by Section 373.019(22), Florida Statutes, and Florida Administrative Code Rule 62-340.200(19). (The Department also established that there is a fifty percent chance of the filled area being flooded during any given year.) Therefore, any filling on that portion of Respondent's property would require a permit. Department records reflected that Respondent had never obtained a permit authorizing any work. During their inspection, Department representatives observed that a narrow strip of land totaling around 0.20 acres in the northwest corner of the parcel (just west of the larger fish pond) had been filled with concrete debris and sand to a height of around 6 or 7 feet in an effort to sever the connection between the River and the wetlands.5 Unless the berm is removed, the activity could lead to adverse cumulative impacts, including a loss in available habitat for floral and fauna that currently use the area, a loss in water storage capacity of the current system, and a loss in detritus formation and nutrient/pollution cycling. An Enforcement Inspection Report prepared after the inspection recommended that an enforcement action be initiated. On June 10, 2004, the Department issued its Notice alleging that Respondent had violated Florida Administrative Code Rule 62-343.050, which requires a permit to fill wetlands or surface waters, and Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule. On August 12, 2004, Respondent filed his Petition challenging the Notice. In his Petition, Respondent denied that he owned the property on which the filling occurred; alleged that the property had been previously inspected in 1986 by the Corps; alleged that the District confirmed by letter in 1992 that the filling had occurred prior to 1984 and was therefore exempt from regulation; and alleged that he is entitled to "restitution" for damages caused by the Wysong Dam being rebuilt downstream from his property. At hearing, Respondent also suggested that the filled area was not wetlands. This proceeding followed. On November 17, 2004, the Department conducted a second inspection of Respondent's property. The objectives of that inspection were to determine the boundary of the filled area by Global Position Satellite equipment and to allow Eric D. Hickman, the new Environmental Manager who was not present during the first inspection, to perform a review of the property. Through ground reconnaissance and photo- interpretation, Mr. Hickman was able to establish the landward extent of the wetlands and other surface waters of the State. Based on vegetation, soils, and hydrologic indicators found on the site, he was able to confirm that the filled area on Respondent's property is wetlands. In fact, because of the overwhelming evidence of wetland indicators on the property (that is, the site conditions met nearly every single test criterion for a wetland), Mr. Hickman stated that he could make that determination with "100 percent certainty." Mr. Hickman concurred with the findings in the earlier inspection report, including one that the filled area is located entirely within a forested floodplain, which is both a surface water and a wetland due to regular flooding in the area for sustained periods of time. Photographs received in evidence, and testimony by Department representatives, confirm that the flooding occurs on a regular basis. See also Finding of Fact 13, supra. Significantly, Mr. Hickman observed that additional filling had occurred since the first inspection some eighteen months earlier, and that there were two signs on the front of his property reading "Needed Clean Fill." Finally, the location of two large cypress trees on the property suggested that an intact and mature floodplain existed before the alterations occurred. The filling poses a threat to the functions of the land, such as vegetation and habitat. Therefore, removal of the concrete debris and sand is necessary in order to restore those functions. While the Department would not promise that he could do so, it did represent that it would consider Respondent's request to remove the debris and sand to the upland area of his property, which would be much less expensive than hauling it offsite. At hearing, Respondent acknowledged that despite a warning by the Corps in 1986 that the filling was illegal, he has continued to engage in that activity for at least two reasons: to prevent flooding of his property and to prevent contaminated River water from reaching his fish ponds. He further acknowledged that as recently as 2003 he allowed several trucks to dump concrete debris and sand onto his property. (The concrete debris was obtained from a local Walmart store.) Respondent justified his actions in part on the ground that the Corps failed to respond to his letter in March 1987, and he assumed that this was an indication that the filling was legal. He also contended that the filled area was originally uplands when he purchased the property, but it changed to wetlands due to increased runoff from heavy development in the area and the construction of a dam downstream which caused the River to overflow during heavy rains. As a consequence, his property and others in the area (such as homes on Cyril Drive) have been prone to flooding. However, Mr. Hickman established that a floodplain existed on the property before any filling occurred. In any event, the Department has jurisdiction over both natural and artificial wetlands, and permits are needed for filling either type of wetland. Therefore, while the filling may have been performed for a salutary purpose, after 1984 he needed a permit to do so (assuming that such activities in a wetland are permittable). The fact that the land is zoned agricultural by Hernando County does not negate this requirement.5 Finally, a contention that a wetland is changed to uplands by merely placing dry dirt onto the wetland has been rejected. The land still remains a wetland for jurisdictional purposes. Respondent never filed for an after-the-fact permit (as suggested by the Corps in 1987) because it was too "complicated" to fill out the form. He conceded, however, that he did not ask the Department for assistance in doing so. Except for the explanations discussed above, Respondent presented no mitigating evidence. He has asked that due to his financial circumstances the amount of the fine be moderated or forgiven. At hearing, three Tampa District Office employees established that they spent a total of 70 hours of time on this case. At their hourly rate of pay, this totals $1,850.00 in investigative costs. In addition, Mr. Hickman was required to perform a wetland determination on the property. The normal charge for an assessment on a property of this size is $550.00. The reasonableness of these amounts was not disputed by Respondent. However, the Department is seeking reimbursement of only $500.00.
Findings Of Fact Calvin Sherman, Petitioner, was employed on November 19, 1974, by the Department of Pollution Control as an Environmental Specialist II (ES II) which at the time was assigned position number 00321. Immediately prior to the time Sherman was employed the position was vacant. He was interviewed for this position by an Environmental Specialist III (ES III) to which was assigned position number 00046 and who exercised some supervision over Sherman after the latter was employed. In January, 1975 under a reorganization plan many functions and positions formerly held by the Department of Pollution Control were reassigned to the new Department of Environmental Regulation. During this reorganization position number 00046 to which was assigned job classification ES III became vacant and Sherman, effective January 27, 1975, was promoted to this position. The job description of ES II during the time the position was held by Sherman is contained in Exhibit 1. The job description of ES III during the time the position was held by Sherman is contained in Exhibit 3. Greater administrative responsibilities are required for ES III than are required for ES II and the pay per bi-weekly pay period on January 27, 1975 for ES II was $417.60 and for ES III was $540.80. Petitioner testified that he performed the same duties as an ES III he had performed as an ES II, however, his Time and Attendance Record Report (Exhibit 7) do not so indicate. Sherman was terminated from his employment with DER effective July 25, 1975, and contested this termination before the Career Service Commission alleging that he was a permanent employee and not subject to termination except four cause. That hearing resulted in a determination adverse to Petitioner. In January, 1976 from position number 00321, position title ES II, pay grade 25, was deleted and replaced with position title, Biologist III, pay grade In March, 1977 the position title for position number 00321 was changed from Biologist III, pay grade 20 to Biologist IV, pay grade 23 (Exhibit 8). Similarly, in November, 1975 from position number 00046, position title ES III, pay grade 29, was deleted and replaced with position title, Chief of Special Programs, pay grade 32 (Exhibit 8). The procedural requirements of Section 120.54, Florida Statutes prescribed for the adoption of rules were not complied with when these various position numbers were moved within DER and assigned to a particular job description and pay grade. Each position number such as 00321 and 00046 applies to one individual position only and not to a class. For example, if DER had ten ES II's each would have a different position number and in 1975 one of these ES II's, namely Calvin Sherman, filled position number 00321. When he was promoted to ES III he filled the billet authorized by position number 00046. Thus, the position number is applicable to one position or person and is assigned to one job title, description and pay grade. The ten ES II positions, for example, authorized for DER would have the same job title, description and pay grade, but each would have a different position number.
The Issue This proceeding concerns an Intent to Issue a dredge and fill permit given by the Department of Environmental Regulation ("DER") to Respondent, Edmund Burke ("Burke"), for construction of a retaining wall and wooden pile-supported bridge crossing a portion of the South Fork of the St. Lucie River in Martin County, Florida. The ultimate issues for determination are whether Petitioner has standing to challenge the proposed DER action, and if so, whether the proposed agency action complies with the requirements of Sections 403.91 through 403.938, Florida Statutes, and applicable rules.
Findings Of Fact Respondent, Edmund Burke, on January 15, 1988, filed with the Department of Environmental Regulation ("DER") application number 431441608 for a permit to construct a permanent, pile supported, wooden bridge approximately 80 feet long and 10 feet wide connecting the mainland with an island in the South Fork of the St. Lucie River in Martin County, Florida. The bridge was to span a 50 foot canal or creek ("channel") in the River. One of two retaining walls was to be located on the mainland peninsula. The other retaining wall was to be located on the island (the "initial project"). Between January 15, 1988, and April 28, 1989, the initial project was modified by Respondent, Burke, to satisfy DER concerns over potential impacts, including secondary impacts, relevant to the application. The width of the bridge was reduced from 10 feet to 6 feet. The retaining wall initially planned at the point where the bridge intersects the island was eliminated. The retaining wall on the mainland side of the bridge was relocated above mean high water. Sixty feet of the proposed bridge runs from mean high water to mean high water. An additional 10 feet on each end of the bridge is located above mean high water. The project remained a permanent, pile supported, wooden bridge (the "modified project"). The Intent to Issue, dated April 28, 1989, indicated that the modifications required by DER had been made, that the modifications satisfied DER concerns relevant to the initial project, and that DER intended to issue a permit for construction of the modified project. The elimination of the retaining wall obviated any necessity for backfill on the island. The reduction in the width of the bridge virtually eliminated the secondary impacts on the surrounding habitat, resulted in less shading of the water, and precluded vehicular traffic over the bridge. The final modification that was "necessary in order for [DER] to approve this application" was the reduction in the width of the bridge from 10 feet to 6 feet. Petitioner's Exhibit 17. DER's requirement for this final modification was communicated to Mr. Cangianelli in a telephone conversation on April 6, 1989 (Petitioner's Exhibit 18), and memorialized in a letter to Respondent, Burke, on April 14, 1989 (Petitioner's Exhibit 17). The final modification was made, and the Intent to Issue was written on April 28, 1989. Petitioner's Case. Property commonly known as Harbor Estates is adjacent to the site of the modified project. A constructed harbor and contiguous park are located within the boundaries of Harbor Estates. Both are used by residents of Harbor Estates and both are proximate to the site of the modified project. The harbor entrance and site of the modified project are located on opposite sides of a peninsula approximately 40 feet wide and approximately 125 feet long. Boats operated by residents of Harbor Estates that can navigate under the modified project need only travel the length of the peninsula, a distance of approximately 125 feet through the channel, in order to reach the harbor entrance. Boats operated by residents of Harbor Estates that cannot navigate under the proposed bridge must travel around the island, a distance of approximately 1800 feet in the main body of the St. Lucie River, in order to reach the harbor entrance. However, Petitioner presented no evidence that prior to the construction of the bridge the channel was navigable by boats not capable of passing under the bridge after the bridge was completed. Petitioner, Harbor Estates Associates, Inc., submitted no evidence to show facts necessary to sustain the pleadings in the Petition concerning the inadequacy of modifications required by DER. Of Petitioner's 26 exhibits, Exhibits 1-19, 24 and 25 were relevant to the initial project but were not material to claims in the Petition concerning the inadequacy of the modifications required by DER. Petitioner's Exhibit 20 was cumulative of DER's Exhibit 6B. Petitioner's Exhibits 22 and 26, respectively, concern a 1980 bridge permit and a Proposed Comprehensive Growth Management Plan for Martin County, Florida. Petitioner offered no expert testimony in support of the pleadings in the Petition including assertions that: the modified project will have a direct adverse impact upon water quality and the welfare or property of others; the channel is navigable by deep-draft motor vessels; the modified project will result in shoaling that will have to be corrected at the expense of Harbor Estates; the modified project will result in prohibited destruction of mangroves; or that the modified project will cause any of the other specific adverse effects described in the Petition. The testimony of fact witnesses called by Petitioner was not material to Petitioner's claims that modifications required by DER were inadequate. The testimony of Bob Nicholas was relevant to allegations of prior violations but was not dispositive of any issue concerning the adequacy of modifications required by DER. The testimony of William Burr was admitted as rebuttal testimony relevant to precedents in the general area of the modified project but failed to address the adequacy of modifications required by DER. Petitioner consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioner repeatedly attempted to establish violations of laws not relevant to the proceeding including local laws and other environmental laws. Petitioner attempted to establish issues by arguing with witnesses during direct and cross examination, and by repeatedly making unsworn ore tenus representations of fact. There was a complete absence of a justiciable issue of either law or fact in this proceeding because Petitioner failed to show facts necessary to sustain the pleadings. Petitioner presented no evidence refuting Respondent, Burke's, showing that the modifications required by DER were adequate to assure water quality and the public health, safety, or welfare, or the property of others. Evidence presented by Petitioner was not material to the issue of whether the modifications required by DER were adequate for the purposes of the law applicable to this proceeding. Therefore, Petitioner participated in this proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to needlessly increase the cost of licensing or approval of the proposed activity. Respondents' Case. The island to be accessed by the modified project is approximately 2.5 acres in area and contains mostly wetland. The island is approximately 900 feet long. The portion of the island that is beyond DER permit jurisdiction is less than 200 feet long and less than 50 feet wide. The site of the modified project is located in Class III waters. Respondent, Burke, provided adequate assurances that portions of the modified project not extending over open water will be constructed upon property owned by him. The single retaining wall to be constructed at the southeastern terminus of the modified project will be constructed landward of DER jurisdiction. The modified project permits neither the installation of water or electrical conduits to the island nor any excavation, filling, or construction on the island. Respondent, Burke, must provide notification to DER before any such activity is begun. The bridge will accommodate no vehicular traffic larger or heavier than a golf cart. Golf cart access is necessary in order to accommodate a physical disability of Respondent, Burke. The modified project employs adequate methods to control turbidity, limit mangrove alteration on the island, and limit potential collisions with manatees. Vegetation, including mangroves, will not be removed. Incidental, selective trimming of vegetation will be allowed to create access to the island. The single retaining wall to be constructed on the mainland will be located landward of mangroves. Turbidity curtains will be used during construction to minimize short term water quality impacts. The modified project requires turbidity screens to be installed if there is any indication of sedimentation. No mechanical equipment will be located on the island during construction. No boats will be moored at the site of the modified project. The modified project will cause no significant downstream shoaling or silting. The site of the modified project is located approximately 15 feet from an existing fishing platform. No significant shoaling has been associated with that platform. The impacts associated with the modified project are similar to the impacts associated with single family docks in the area. No significant shoaling has been associated with such docks. The modified project is not a navigational hazard. The elevation is sufficient to accommodate small boats, canoes, and row boats. Reflective devices are required to alert night boat traffic of its presence. There is adequate clearance under the bridge to prevent obstruction. DER reviewed all applicable rules and criteria in considering the modified project. The modified project will have no adverse effect upon public health, safety or welfare, or the property of others. The modified project will not adversely impact the conservation of fish, wildlife, or their habitats. The modified project will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling. The modified project will not adversely impact fishing value or marine productivity in the area. The modified project will have no adverse impact upon recreational values in the vicinity. The modified project was reviewed in a manner that is customary for similar projects reviewed by DER. It is common practice for DER employees, as they did in this case, to rely upon opinions of other DER professionals in formulating an intent to issue. Other projects within DER jurisdiction in the general geographic area of the modified project and within the same region were considered in DER's review process. Other docks and marinas have been constructed and are proposed for construction within the South Fork of the St. Lucie River. Bridges including pedestrian bridges have been and are proposed to be constructed in Martin County. DER did not require a hydrographic study because the modified project was considered a minor project. DER review took into account the intended future use of the island property and DER's past experience with Respondent, Burke. As part of its review, DER reviewed a conceptual bridge to a single family residence on the island which would not require any fill or construction of retaining walls. In addition, DER considered previous violations on the island under Florida Administrative Code Rules 17-4.070, 17-4.160, and 17-4.530 in connection with an earlier permit that expired before the initial project was begun. Respondent, Burke, provided reasonable assurances that he is the owner of the site of the proposed project. Respondent, Burke, signed DER's property ownership affidavit and submitted a survey. DER's Intent to Issue does not authorize any construction in any area within the jurisdiction of DER other than the modified project. The Intent to Issue constitutes compliance with state water quality standards. DER has not received any requests for a jurisdictional determination in the general geographic area of the modified project. No enforcement action has been initiated by DER or at the request of a third party against Respondent, Burke, for alleged violations of DER rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order on the merits issuing the requested permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990. APPENDIX Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Although most of Petitioner's proposed findings were cast in the form of "fact", they were in substance argument and rejected accordingly. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in part in Finding 1 Findings as to ownership are rejected as beyond the jurisdiction of the undersigned. Finding as to the late filed exhibit is rejected as irrelevant. 2-4, 10-12, Rejected as either irrelevant 16, or not supported by the record. 5 and 6, 37, 40 Rejected as unsupported by 42 the record. 7, 8, 15 Rejected as irrelevant 17, 21-29 and immaterial 9, 13, 14, 18-20 Rejected as immaterial 30-33, 35 and 36 37(a), 38, 39, 41, 48 20(A) Rejected as irrelevant and immaterial except the last sentence is included in Finding 13 34 Included in Finding 12 Rejected as not supported by the record, hypothetical and immaterial. Rejected as not established by clear and convincing evidence. Respondent, Burke, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent. Burke's, Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 15 and 16 Included in Finding 1 17, 26, 27 Included in Finding 2 18, 48 Included in Findings 15 and 16 19, 30, 31, 42 Included in Finding 13 20, 21, 44 Included in Findings 4 and 14 22, 23, 25, 32 Included in Finding 17 24 Included in Finding 16 25, 36-38 Included in Finding 17 Included in Finding 18 Included in Finding 3 Included in Finding 10 Included in Finding 19 35, 39, 43 Included in Finding 20 40, 41 Included in Finding 11 45-47 and 49 Included in Finding 16 51 and 52 Included in Findings 6-8 54 Included in Finding 5 and 8 50 and 53 Rejected as irrelevant and immaterial Respondent, DER, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2 Included in Findings 1 and 2 3 Included in Finding 10 4 and 5 Included in Finding 16 6, 9 Included in Finding 2 7 and 8 Included in Findings 9 and 11 10 Included in Finding 13 11 Included in Finding 15 Included in Finding 17 and 14 Included in Finding 16 COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia E. Comer Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia V. Bartell Qualified Representative 615 S.W. St. Lucie Street Stuart, FL 34997 J. A. Jurgens Jones, Foster, Johnson & Stubbs, P.A. 505 South Flagler Drive West Palm Beach, FL 33402
Findings Of Fact On October 31, 1979, the City of Clearwater applied to the Department for permits for the installation of a sewage collection/transmission system in Tract 59 of Countryside Development pursuant to Chapter 403, Florida Statutes. This gravity system was intended to connect to a regional pump station which, at the time of the application, was in the pro- cess of being built. If the gravity system was completed before the pump station, the sewage would be collected at the most downstream manhole and tank-trucked to a waterwaste facility operated by the City of Clearwater. (Intervenor's Exhibit Number 7). After receipt of the application, the Department recommended on November 30, 1979, issuance of the requested permit for Tract 59 and found that the sewage collection system would be installed according to standard approved specifications. (Intervenor's Exhibit Number 11). Petitioner contests the proposed issuance of the requested permit on grounds that the collection system may cause serious damage to Petitioner's downstream property in that transportation of sewage by truck is insufficient for the design flow of the facility and that the storage capacity of the lower manhole opening is not sufficient to prevent the pop-off of manhole covers. Petitioner's property is not adjacent to or contiguous with Tract 59. (Intervenor's Exhibit Number 1). Although Tract 59 and the Petitioner's property are in the same primary drainage basin area, they are in separate sub-basins of the primary drainage area. Tract 59 is in a drainage area referenced as sub-basin 4 while Petitioner's property is referenced as sub-basin 1. (Intervenor's Exhibit Number 2, Testimony of Zimmerman), An indistinguished ridge line exists between the two sub-basins which could be characterized as jurisdictional. A jurisdictional line defines the boundaries of wetlands. (Intervenor's Exhibit Number 12, Testimony of Kutash, Testimony of Mazer). Despite the existence of ditches in an area near the ridge line, there is no discernible surface water flow between the two sub-basins. (Testimony of Zimmerman, Testimony of Mazer). Sub-basin 4 drains north of Tract 59 to surface outfall 4, beneath Curlew Road then to an outfall canal and eventually to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer). Sub-basin 1 drains to an outfall in Tract 60 then to Possum Branch Creek and then to Tampa Bay. (Intervenor's Exhibit Number 2, Testimony of Mazer). Tract 59 and Petitioner's property are connected by a sewer line which will be physically blocked until the regional pump station is completed and operational. (Testimony of Mazer). Prior to the hearing, the Intervenor filed Motions to Dismiss and Bifurcate which were both based upon Petitioner's alleged lack of standing to maintain this administrative action. These motions were denied and Petitioner was given the opportunity to present evidence to establish standing. At the close of the hearing, Intervenor again asserted that Petitioner lacked the requisite standing to maintain this action.
Recommendation Accordingly, since the facts fail to support the allegations that Petitioner's "substantial interests" would be affected by this permit and a verified complaint was not filed as required by 403.412(5), Florida Statutes, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Petition in this cause. RECOMMENDED this 1st day of April, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Leslie M. Conklin, Esquire 2400 West Bay Drive Suite 415 Largo, Florida 33540 Alfred W. Clark, Esquire Joel R. Tew, Esquire and Department of Enviromental John T. Blakely, Esquire Regulation Post Office Box 1368 2600 Blairstone Road Clearwater, Florida 33517 Tallahassee, Florida 32301
