Findings Of Fact Respondent, Michael N. Kuvin (Kuvin), was at all times material hereto a certified general contractor in the State of Florida, having been issued license numbers CG CB07136 and CG C007136. Kuvin, under license number CG CB07136, was the qualifying agent for Gerald S. Krigel Corporation (Krigel Corp.). During the years 1904 and 1985, Krigel Corp. acted as the general contractor for Lomar Communities Inc. (Lomar), the owner/developer of Sugarwood and Heritage Park subdivisions, Dade County, Florida 1/ Gerald Krigel was the president of Krigel Corp. and Lomar. While the Sugarwood and Heritage Park subdivisions were under development, Kuvin did not supervise, direct, manage, or control the contracting activities of Krigel Corp., nor did he supervise, direct, manage, or control any of its construction activities in the subdivisions. He did, however, meet with Mr. Krigel twice a year, at which times he signed and delivered to Mr. Krigel an indeterminate number of blank building permit applications. On each occasion, Kuvin was paid $1,500. 2/ In mid-December 1985, Lomar and Krigel Corp. closed their offices. In January 1986, Lomar filed a petition in bankruptcy. The Freedman Residence On January 8, 1984, Marc Freedman and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Sugarwood subdivision. The agreement, as subsequently modified on May 11, 1984, called for Lomar to build the house in accordance with an agreed floor plan and deed it to the Freedmans in exchange for an agreed price of $106,337.50. On June 7, 1984, a building permit application was submitted to the Dade County Building and Zoning Department (Dade County) to construct the Freedman house. The application listed Lamar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 10, 1984, and a certificate of completion was issued on October 3, 1984. A closing was held on the Freedman purchase in late October 1984. Certain construction deficiencies existent on closing or subsequently discovered have not, however, been rectified despite demand of Lamar and Kuvin. 3/ The deficiencies include a backyard which is prone to flooding because of poor drainage, a pool deck area which has cracked into 14 separate pieces because not scored and which floods because not graded; interior dry wall which has cracked and buckled, and cracked tiles in the bathroom. The Florez Residence On February 23, 1985, Maria Florez entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to Ms. Florez in exchange for an agreed price of $69,500. Under the terms of her agreement with Lomar, Ms. Florez was obligated to pay an initial deposit of $1,000, and an additional deposit of $2,500 upon approval of her application for a mortgage loan. Ms. Flores paid Lomar the initial deposit of $1,000, the $2,500 deposit upon approval of her application for financing with Pan American Bank, as well as the additional sum of $1,136 to add an air vent in the bathroom and to upgrade the carpeting. On June 25, 1985, a building permit application was submitted to Dade County to construct the Florez unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued July 5, 1985, and construction apparently completed in November 1985; however, Dade County has not yet issued a certificate of completion. No closing was ever scheduled for the Flarez unit. Upon learning of Lomar's bankruptcy, Ms. Florez filed a claim in the bankrupt's estate. To date, that claim has not been resolved. The Cevallos Residence On March 13, 1985, Pedro Cevallos and his wife entered into an agreement with Lamar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan and deed it to the Cevallos in exchange for an agreed price of $69,900. Under the terms of the Cevallos' agreement with Lamar, they were obligated to pay an initial deposit of $500, and an additional deposit of $3,000 upon approval of their application for a mortgage loan. The Cevallos paid the deposits of $3,500, as well as an additional $190 to add an air vent in the bathroom. On June 6, 1985, a building permit application was submitted to Dade County to construct the Cevallos unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued June 13, 1985, and a certificate of completion was issued on November 14, 1985. The Cevallos had a walk through inspection of their unit and noted no deficiencies. A closing never occurred, however, because of Lamar's bankruptcy. The Cevallos are a claimant in the bankrupt's estate, but that claim has not been resolved. The Sujansky Residence On October 21, 1934, James Sujansky and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $64,900. On April 12, 1935, a building permit application was submitted to Dade County to construct the Sujansky unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on April 26, 1985, and a certificate of completion was issued on October 9, 1985. On October 22, 1985, a closing was held on the Sujansky unit. At closing, the Sujanskys received a no-lien affidavit, a builder's warranty from Lomar, and Lomar's assurances that the deficiencies noted on the punch list would be corrected. Lomar failed or refused to correct the following deficiencies: the yard was prone to flooding because of poor drainage, cracked tiles were noticeable in both bathrooms and the kitchen, the dry wall was not sanded or painted, the exterior walls contained cracks in the stucco finish, the window trim rattled, the front door had gaps around it, the kitchen cabinets had missing or unsecured handles, and the formica was peeling off the kitchen counter. Subsequent to closing, the Sujanskys received a claim of lien against their property from GDG Services, Inc., B.Q. Interiors Contractors, and Bird Plumbing Corp. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390, but failed to establish the validity or amount of the remaining claims. The Frisby Residence On March 25, 1985, Thomas Frisby and his wife entered into an agreement with Lomar for the purchase and sale of a single family residence in the Heritage Park subdivision. The agreement called for Lomar to build the unit in accordance with an agreed floor plan in exchange for an agreed price of $69,000. On June 6, 1985, a building permit application was submitted to Dade County to construct the Frisby unit. The application listed Lomar as the owner, Krigel Corp. as the contractor, and was signed by Kuvin. The requested permit was issued on June 13, 1985, and a certificate of completion was issued on December 31, 1985. On November 3, 1985, a closing was held on the Frisby unit. At closing, the Frisbys received a no-lien affidavit and a builder's warranty from Lomar. Subsequent to closing, the Frisbys noted numerous deficiencies which Lomar failed or refused to remedy. These deficiencies included a back yard prone to flooding because of poor drainage, a bedroom wall that leaked and caused the wall and carpet to mildew, chipped and cracked sidewalks, and an uneven livingroom floor. Additionally, the Frisbys received a claim of lien against their property from B.Q. Interiors Contractors, S&R Industries, Inc., and Val's Air Conditioning, Inc. These companies claimed monies owed for materials and services furnished to the property under a contract with Lomar or Krigel Corp. The proof established that B.Q. Interiors was owed the sum of $390 and that S&R Industries was owed the sum of $632.50, but failed to establish the validity or amount of the lien claimed by Val's Air Conditioning.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Michael N. Kuvin's certification as a general contractor, license numbers CG CB07136 and CG C007136, be REVOKED. DONE AND ORDERED this 1st day of April, 1937, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 1st day of April, 1987.
The Issue The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.
Findings Of Fact Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250. Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following: I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter. * * * I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice. The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.
Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, immediately north of the Venetian Causeway. The marina is constructed on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund. On May 4, 1976, DER issued Permit No. 13-30-0364-6E to Respondent. That permit authorized the construction of two concrete marina docks, one "T" shaped and 255 feet long, and the other "J" shaped and 500 feet long. The project site is north of the Venetian Causeway on the western edge of Biscayne Bay, Section 31, Township 53 North, Range 42 East, Dade County, Florida. On August 18, 1977, DER issued Permit No. 13-30-3984 to Respondent. That permit authorized the construction of a 700 foot long "J" shaped pier with 24 finger piers and associated mooring pilings, and the construction of a 280 foot long "T" shaped pier. This permit authorized construction to be undertaken directly north of the docks authorized by Permit No. 13-30-0364-6E described above. On August 18, 1977, Respondent applied to DER's West Palm Beach office for a permit to construct the center pier of the Plaza Venetia Marina. On October 27, 1977, DER issued Permit No. 13-30-0740-6E to Respondent. This permit, which is the only one of the three permits at issue herein, authorized construction of a boat tie-up and fueling facility for a public marina. This facility represented a final phase of a master plan which includes the two other marinas with tie-up accommodations authorized by Permit Nos. 13-30-0364-6E and 13-30-3984. The drawings which accompanied the permit application carried the designation "FUEL" on the large platform at the end of the center pier of the marina. The cover letter from Respondent's authorized agent explained that " . . . the fueling area has been made sufficiently large so as to isolate the fuel pumps." No specific mention was made in the application or supporting materials of any building to be constructed on the central pier, and none of the permit drawings initially filed with DER depict any such building. DER employees who processed the permit, however, knew at some time during the processing of the permit application that some sort of structure would likely be constructed on the platform at the end of the center pier, although the plans did not disclose such a building, and the agency made no inquiries about, nor requested any additional information from Respondent concerning the type of structure contemplated. At the time of the issuance of Permit No. 13-30-0740-6E Respondent did not know the exact nature, size, or height of any structure that it might wish to build on the central platform. At the time, Respondent had only a conceptual idea of a structure that might accommodate the uses it contemplated for the platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings attached to Permit No. 13-30-0740-6E. That drawing was not initially filed with the original permit application, but was provided during the permitting process by Respondent prior to issuance of the permit. Permit No. 13-30-0740-6E was issued to Respondent on October 27, 1977, pursuant to the authority granted DER under Chapters 253 and 403, Florida Statutes. Nowhere in the permit is there any reference to Section 258.165, Florida Statutes. The permit, by its expressed terms, authorized the following: To construct a boat tie-up and fueling facilities [sic] for a public marina. The facility will extend approximately 390 feet into Biscayne Bay from the bulkhead line. The dock will provide tie-up spaces for 20 boats and six fuel slips, and will contain floating oil collars in case of oil or gasoline spillage. This facility represents the final phase of a master plan which includes two other marinas with tie-up facilities . . . On January 11, 1979, some approximately fourteen months after issuance of the permit for the center pier, Respondent sent a letter to DER's West Palm Beach office which read as follows: Enclosed please find a copy of a letter as sent to the Army Corps, re: the service facility you and I discussed for the already approved fuel dock (State No. 13-30-0740-6E) for the Plaza Venetia Marina. I also enclose copy of the plans. Please review as quickly as possible since we intend to start construction on the marina within 30 to 45 days. (Emphasis added.) Enclosed with the January 11, 1979, letter to DER was a copy of a January 11, 1979, letter to the Army Corps of Engineers which read as follows: Recently I reviewed with [a Corps representative] the placement of a small service accommodation facility on the already approved fuel dock for the Plaza Venetia Marina . . . I left a set of plans with [the Corps] at the Corps office in Miami Beach. The facility is in close keeping with the permitted use of the marina. It will occupy less than half the already approved area of the fueling facility. It will be constructed on an already permitted facility. Included are a small bait and tackle shop; convenience store; captains' office; observation area and required bathrooms. The discharge from the bathrooms will flow directly into the main County sewer disposal system and will utilize a sewer pump-out facility located on the fuel dock. * * * After carefully reviewing my existing permit, the limited nature of the facility described, and its sole purpose of servicing the already permitted marina, please advise me if any modifications are required. I look forward to hearing from you as quickly as possible on this matter since construction of the marina is projected to begin within the next 30 to 45 days. A copy of the floor plan of the proposed building was attached to the January 11, 1979, letter received by DER. This floor plan indicates areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan is a storage area for electric carts to be used in servicing vessels utilizing the marina facility. The record in this cause establishes that Respondent never intended its January 11, 1979, letter to DER to be a request for a permit modification or an application for a new permit. Instead, the letter was intended only as a request for DER review of and comments on the proposed structure to be built at the end of the central pier. DER representatives in its West Palm Beach office forwarded the letter to the Tallahassee office of DER. DER never responded either orally or in writing to Respondent's communication of January 11, 1979, enclosing the building plan. On June 19, 1979, DER had opened its file No. 13-9916 in its standard form dredge and fill permitting section in Tallahassee in response to a letter received from Respondent requesting the addition of some dolphin pilings along the bulkhead at the Plaza Venetia Marina. The request from Respondent was treated as standard form application because the scope of the entire marina project exceeded short-form criteria. After receiving this request from Respondent, DER sent a completeness summary to Respondent within 30 days of receipt of the application requesting that Respondent provide approval from the Department of Natural Resources for the use of sovereignty submerged lands. Through various correspondence, this application was expanded to include several additional modifications to the overall marina, including reconfiguration of the fuel dock, addition of finger piers, reconfiguration of the "T" docks, and addition of a 12-foot boardwalk. Finally, the application was modified so that it constituted an application to consolidate the three existing permits. On January 29, 1980, Respondent submitted the last item of information required by the completeness summary except for DNR approval for use of sovereignty submerged lands. The aforementioned letter of January 11, 1979, from Respondent, which included the building floor plan, was apparently placed in DER file No. 13-9916 relating to Respondent's requested permit modification. Although the floor plan is contained in this file, the record in this cause clearly establishes that neither Respondent nor DER treated either the January 11, 1979, letter or the enclosed plan as a request for modification of Permit No. 13-30-0740-6E. DER file No. 13-9916 sat dormant for almost three years awaiting DNR consent for the use of state-owned lands. By letter dated July 10, 1981, DER requested Respondent to indicate whether it wished to pursue the permit modification application further since it had been 1,085 days since DER had notified Respondent of the necessity to furnish notification from DNR concerning further use of state sovereignty submerged lands. By letter dated July 15, 1981, Respondent withdrew its permit modification application. On April 20, 1979, the City of Miami issued a valid building permit for the marina fueling station. Respondent notified DER in July, 1979, that it was beginning construction of the marina. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 28, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Subsequent to the commencement of construction DER representatives inspected the building site on several occasions. Respondent was not made aware in advance of when these inspections would occur since they were scheduled at the sole discretion of DER. DER first learned of the actual construction of the marina fueling station after receipt of a citizen complaint on December 1, 1981. Upon inspection of the site by DER personnel on December 2, 1981, it was discovered that the building on the fuel dock was partially complete with finish work and the placement of some interior and exterior walls remaining to be accomplished. DER served a warning notice on Respondent on December 7, 1981, advising Respondent of an alleged violation of its existing permit. A second warning letter was sent to Respondent on January 26, 1982, followed by the issuance of the Notice of Violation by DER. DER incurred costs and expenses of $405.40 in investigating the alleged violation. The structures authorized by Permit Nos. 13-30-0364-6E, 13-30-3984, and 13-30-0740-6E ("the structures") have been constructed by Respondent. The structures are located within the Biscayne Bay Aquatic Preserve ("the Preserve") established by Section 258.165, Florida Statutes. Biscayne Bay at the site of the structures is a navigable water of the State of Florida. A building with a floor area of approximately 3,800 square feet and a roof area of 5,292 square feet has been constructed at a cost of approximately $500,000 on the platform at the end of the center pier of the marina. The net area of the platform contains about 9,640 square feet. It has been stipulated by the parties that construction of the building on the center pier will not result in significant adverse water quality or biological impacts which were not contemplated when the above-referenced permits were issued for the marina. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant's room with cash register and equipment for the fuel pumps. All of these uses are customarily associated with the operation of marina facilities. The building as constructed differs in several minor respects from the one shown on the plans submitted to DER in the January 11, 1979, letter from Respondent. What had been shown on those plans as outdoor seating has been enclosed, walls and proposed uses have been relocated within the building, and the entire building has been moved back on the fuel dock. It is concluded, however, that these changes are of such a minor nature as to not constitute a material departure from the plans furnished to DER in January of 1979. As-built plans for the building have never been provided by Respondent to DER. At the time of Respondent's application for the permit for the center pier, DER rules required that a permit applicant provide cross-sectional drawings of proposed structures to be built in conjunction with docking facilities such as those proposed by Respondent. Drawings attached to the permit application show two cross sections through the center pier, but neither of these cross sections depict a building to be constructed on the pier. Respondent did not submit cross-sectional drawings for the building at the time of its application, and none had been submitted to DER as of the date of final hearing in this cause. However, DER at no time requested such cross-sectional drawings, despite the fact that those agency representatives processing Respondent's permit application assumed from the outset that some structure would and could be built by Respondent on the platform attached to the central dock under the terms of the October 27, 1977, permit. The estimated cost for removal of the building at the end of the central pier is $150,000-$200,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. CASE NO. 82-1640 FLORIDA EAST COAST PROPERTIES, INC., Respondent. /
The Issue The issue in this case is whether Respondent violated Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), Florida Statutes (1999) (hereinafter, "Florida Statutes"), respectively, by: engaging in contracting as a business organization without applying for a certificate of authority through a qualifying agent and under a fictitious name; failing to notify Petitioner of the mailing address and telephone number of the certificate holder or registrant; committing incompetency or misconduct in the practice of contracting; proceeding on a job without obtaining applicable building permits and inspections; and failing to provide a written statement explaining the consumer's rights under the Construction Industries Recovery Fund (the "Fund").
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a contractor with license number CC C018992. At all relevant times, Respondent was registered or certified with Petitioner as the qualifying agent for Earl Benjamin and Company, Inc. ("EBCO"). As the qualifying agent, Respondent was responsible for all of EBCO's contracting activities in accordance with Section 489.1195. Respondent failed to obtain a certificate of authority from Petitioner. On April 4, 1998, EBCO entered into a contract with Mr. Joseph Chapman ("Chapman") to repair a leak in the roof of Chapman's residence at 1880 Jessica Road, Clearwater, Florida. On the advice of Mr. Dale Edwards, a representative of EBCO, Chapman entered into a second contract with EBCO to repair the entire roof for an additional cost. None of the contracts or other documentation provided by EBCO to Chapman contained a notice explaining the consumer's rights under the Fund. The contract prices for the first and second contracts were $4,500 and $7,500, respectively. After completing the work, Respondent sent another bill to Chapman for $1,750 for additional materials and repairs. Chapman paid, and Respondent accepted, $13,210 as payment in full of all amounts owed to Respondent. The checks signed by Chapman were made payable to "Earl Benjamin and Company and/or EBCO." After EBCO completed the work on the Chapman residence, the roof leaked in four places and continued to leak as of the date of hearing. Chapman contacted Respondent and other EBCO representatives repeatedly in attempt to stop the leaks. EBCO has been unable to stop the leaks in Chapman's home. The Pinellas County Building Department (the "Building Department") never performed a final inspection approving the work performed by Respondent. The Building Department issued building permit number 175919 to Respondent on April 23, 1998. On May 26, 1998, Chapman indicated to the Building Department that the roof leaked, and an inspector for the Building Department inspected the roof on the same date. The inspector found that the birdcage was not reassembled, some flashing was too short, and other eaves and rates were not constructed properly. The inspector issued a red tag for the violations. On June 16, 1998, the inspector inspected the roof again and issued a second red tag for some violations that remained uncorrected. On November 16, 1998, the inspector inspected the roof again and issued another red tag because the roof still leaked. On January 14, 1999, the inspector met with Chapman and representatives for EBCO to address the continuing problems with the roof. The inspector instructed Respondent to update his address and licensing information. On January 26, 1999, the inspector inspected the roof for the last time. The roof still leaked. On May 9, 1998, EBCO entered into a contract with Jack and Dawn Wilcox ("Wilcox") to repair the roof and install roof vents in the Wilcox residence at 247 144th Avenue, Madeira Beach, Florida. The contract price for the Wilcox job was $1,800. The Wilcoxes paid, and Respondent accepted, $1,800 as payment in full of all amounts owed to Respondent. The checks signed by the Wilcox's were made payable to "EBCO" or "EBCO Roofing." After EBCO completed the work on the Wilcox residence, the roof leaked around the vents installed by Respondent. The work performed by Respondent suffered from incompetent workmanship including ragged and non-uniform holes cut into the roof for the vents. Mr. Wilcox attempted to contact Respondent and other EBCO representatives repeatedly in an attempt to correct the leaks in the roof. No one from EBCO returned the messages from Mr. Wilcox. Mr. Wilcox attempted to physically locate Respondent at Respondent's business address, but Respondent's address was incorrect. The Wilcoxes incurred additional expenses of $1,500 to correct problems caused by Respondent. On October 24, 1998, Mr. Wilcox entered into a contract with Kurt Dombrowski Roofing Contractor ("Dombrowski") to repair the leaks in the roof and to re-install the vents in the roof. Dombrowski correctly performed the work, and Wilcox paid Dombrowski $1,500. The Wilcoxes have no further problems with the roof. Respondent never obtained a building permit for the work performed on the Wilcox roof. The Wilcox home was located within the jurisdiction of the City of Madeira Beach (the "City"). The City no longer has a building department. The Pinellas County Building Department assumed the responsibilities of the City. Respondent never obtained a building permit for the Wilcox job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Sections 489.119(2), 489.124(2), 489.129(1)(n) and (p), and 489.1425(1), imposing administrative fines in the aggregate amount of $3,200, requiring Respondent to pay restitution to Chapman and Wilcox in the respective amounts of $13,210 and $1,800, and requiring Respondent to pay costs of investigation and prosecution in the amount of $690.40. DONE AND ENTERED this 9th day of October, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2000. COPIES FURNISHED: Rodney L. Hurst, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert A. Crabill, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-3060 Earl Henry Benjamin 9914 Connecticut Street Gibsonton, Florida 33534
The Issue Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?
Findings Of Fact Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services." On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally designed; and that the system, as installed, would require additional plumbing and a pump to operate it. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs. The agency then instituted this instant disciplinary action against Respondent. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate. RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997. COPIES FURNISHED: Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A Tallahassee, FL 32399-2949 Larry A. Ford Route 1 Box 1705 O'Brien, FL 32071 David West, Esquire Department of Health District 3 Legal Office 1000 Northeast 16th Avenue, Box 3 Gainesville, FL 32601 Dr. James Howell, Secretary Department of Health 1317 Winewood Bouelvard Building 6 Room 306 Tallahassee, FL 32399-0700 Pete Peterson 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 32399-0700
The Issue Whether the Florida Land and Water Adjudicatory Commission should permit the development authorized by Monroe County Building Permit No. 9110002601 and, if so, upon what, if any, conditions and restrictions.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The property that is the subject of the development order under review in the instant case (hereinafter referred to as the "Property") is an 18.85-acre parcel located on No Name Key in unincorporated Monroe County within the Florida Keys Area of Critical State Concern. Since 1985, the Property has been owned by Respondent Florida Keys Investment Properties, Inc. (hereinafter referred to as "FKIP"). The Property is the site of a borrow pit that currently occupies 9.65 acres of the Property's surface area. Since the early 1970's, Rudolph Krause & Sons of Florida (hereinafter referred to as "Krause & Sons") has been operating the borrow pit and excavating fill from the Property for sale to the public pursuant to permits issued by the County. Both Krause & Sons and FKIP are owned by Rudolph Krause, his wife, Roseann Krause, and other members of the Krause family. Since 1975, Roseann Krause has assumed primary responsibility for obtaining from the County the permits necessary to perform the excavation work on the Property (hereinafter referred to as the "excavation permits"). Such excavation permits have been issued by the County each year from 1975 to 1991, with the exception of 1988. 1/ Each of these excavation permits contained language indicating that the permit was a renewal of at least one previously issued permit. No excavation permit other than the 1991 permit, which is the permit under review in the instant case, has been appealed by the Department. Although the excavation work on the Property has been conducted with the approval, and to the apparent satisfaction, of the County, in 1985 the United States Army Corps of Engineers filed a complaint in federal district court against Mr. and Mrs. Krause, FKIP and Krause & Sons alleging that certain work had been done in the wetlands portion of the Property without the requisite dredge and fill permit and therefore in violation of federal law. Neither the County nor the Department were parties to this federal district court proceeding, although the County, at least, was aware of the proceeding. In September of 1985, the federal district court entered a final consent judgement, the first eight numbered paragraphs of which provided as follows: This Court has jurisdiction of the subject matter of this action and of the parties thereto. The provisions of this Final Judgment shall be binding upon the Defendants; their successors and assigns; and all persons, firms and corpora- tions in active concert or privity with the Defendants who have actual or constructive notice of this Judgment by personal service or otherwise. All references to geographical locations with respect to this dredge and fill/restoration on No Name Key shall be directed to the attached sketch entitled "Florida Keys Investment Properties, Inc. Restoration Plan." (Exhibit A). Exhibit A is merely an enlarged view of a portion of Exhibit B, which is a jurisdictional determination by Curtis Kruer, dated June 3, 1983. Within 18 months of entry of this Final (Consent) Judgment, the Defendants shall remove all fill material located in the area indicated on Exhibit A (the south side and southern portion of east side of the existing borrow pit) down to the adjacent wetland elevation. All spoil material so removed will be placed on upland areas on site or at the Defendants' option, may be trucked off site. Spoil material may be stockpiled in areas designated as wetlands immediately adjacent to the areas of the borrow pit to be excavated. Defendants shall notify the Big Pine Key regulatory Field Office of the United States Army Corps of Engineers upon commencement and completion of this phase of the earthmoving work. Within three years of the entry of this Final (Consent) Judgment, the Defendants shall be allowed to enlarge the existing borrow pit as shown on Exhibit A to a maximum depth of -60 feet MSL. Within 120 days from completion of the excavation work described in paragraph 5 above or within 40 months after entry of this decree, which- ever date comes first, the Defendants, shall complete the creation of the wetland shelf area on the eastern and western sides of the borrow pit (excluding that portion of the pit to be excavated in the uplands, i.e. Section "C" on Exhibit B) by grading the area down to the adjacent natural wetland elevations as shown on Exhibit A. All spoil material will be placed on an upland site or, at Defendants' option, may be temporarily stored on site, and then trucked off site within the period set forth in the first sentence of this paragraph. Defendants agree to conduct the above-described restoration measures in an environmentally-sensitive manner and shall use their best efforts to avoid damage to adjacent wetlands or water areas (other than the borrow pit) during this process. In addition, a low fill berm 6-feet wide and 2-feet high shall be constructed and remain around the immediate edge of the pit as shown in Exhibit A at all times during excavation of the pit. This berm shall be extended around the immediate edge of the pit's final configuration. This allows Defendants to continue excavation of the pit in a northerly direction into the existing uplands shown as "C" on Exhibit B. Defendants are hereby permanently enjoined from conducting any further dredging, filling or construction activities at No Name Key, adjacent to Big Spanish Channel in any wetland or water area, above or below the mean high water line, without the prior issuance of a Department of Army permit. The only exception to this provision is the work described herein. Only that portion of Defendants' property depicted as Section "C" on attached "Sketch of Jurisdictional Determination" (Exhibit "B" hereto) is agreed to be uplands, not subject to Army Corps of Engineers jurisdiction. Mrs. Krause had submitted an application for a renewal excavation permit in February of 1985, prior to the entry of the federal district court's final consent judgment. The application, as originally submitted, did not specify the total amount of fill Krause & Sons expected to excavate during the year. In a letter dated March 12, 1985, that she sent to the County's Building Director, Mrs. Krause acknowledged that she did not include this information in the application. The body of the letter read as follows: I applied for renewal of our excavation (borrow pit on No Name) permit in February. I wish to keep current this permit but at the present time I cannot supply you with any additional informa- tion since it is in litigation with the Corps of Engineers. As soon as this litigation is resolved, I will supply you with the needed information as to width, length and depth to be dug as well as total amount of cubic yards. I do not wish this permit to lapse in any way and therefore request that you issue a renewal based upon this information at this time. If you have any questions regarding this information, please do not hesitate to call me. Thank you for your attention to this matter. I certainly appreciate your understanding. The following month, Mrs. Krause supplemented the application she had submitted in February by providing the County with two sketches of the Property which were similar, but not identical, to the one appended to the final consent judgment and identified as Exhibit B. On one of these sketches, she had made the following handwritten notations: "proposed 25,000 yds. 25'x750'x35,'" which notation appeared next to the southwestern edge of the borrow pit; and "uplands to be dug," which notation appeared in the same area on the northerly portion of the Property that is depicted in the final consent judgment's Exhibit B as Section "C" (hereinafter referred to as the "Uplands"). It is apparent from a review of the two sketches that the "proposed 25,000 yds" were to come from an area on the western side of the pit and not from the Uplands. On April 29, 1985, the County issued the excavation permit (Building Permit No. 13289A) for which Mrs. Krause had applied on behalf of Krause & Sons. In issuing this permit, the County used a printed building permit form which contained the following language: THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: Typed in under "WORK DESCRIPTION" on the form was the following: "Renewal of Excavation Permit, Supplement to 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Recipients of permits issued on these printed building permit forms are also furnished "permit cards" that they are instructed to post in an appropriate location at the work site. Each "permit card" contains the following advisement: The person accepting this permit shall conform to the terms of the application on file in the office of the Zoning Department of Monroe County and construction shall conform to the requirements of the Monroe County Codes. In or around early 1986, Krause & Sons hired E.I. DuPont De Nemours (hereinafter referred to as "DuPont") to blast, as a preliminary step in the resource extraction process, portions of the Property that had not yet been excavated (hereinafter referred to as the "Unexcavated Areas"), including the entire uplands area referred to as Section "C" in the federal district court's final consent judgment. Thereafter, DuPont, on behalf of Krause & Sons, applied to the County for a permit authorizing such blasting. The requested permit (Building Permit No. 14835A) was issued on February 20, 1986. In issuing Building Permit No. 14835A, the County used the same printed building permit form that it had used in issuing the 1985 excavation permit referenced in paragraph 15 above. It also provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 14835A was simply the following: "Blasters and Users Permit." No further indication was given as to the nature or scope of the work authorized to be performed. Following the issuance of Building Permit No. 14835A on February 26, 1986, Dupont began its blasting of the Unexcavated Areas. The work was completed later that year. Mr. Krause was on site during the blasting and provided assistance to DuPont. Krause & Sons paid Dupont a total of $267,131.58 for the blasting. In addition, it purchased or leased equipment to be used in the excavation of the blasted material. It would not have made these expenditures had it known that it would be prevented from completing the excavation of those areas of the Property that the County had authorized it to blast. In April of 1986, before the completion of the blasting, Mrs. Krause, on behalf of Krause & Sons, sought to renew Building Permit No. 13289A, the excavation permit she had obtained for the Property the previous year. The application she submitted indicated that Krause & Sons proposed to "[e]xcavate approx. 25,000 cu yds." Along with the application, she submitted a copy of the sketch of the Property containing her handwritten notations that she had sent to the County to supplement the previous year's application. The requested permit (Building Permit No. 15276A) was issued on April 30, 1986. In issuing Building Permit No. 15276A, the County used the same printed building permit form that it had used in issuing the blasting permit and the previous year's excavation permit. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 15276A was the following: "Renewal of Excavation Permit- Approximately 25,000 CY FILL Supplement to 13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." On September 15, 1986, after DuPont had completed its blasting, the County's current land development regulations (hereinafter referred to as the "Regulations") became effective. Section 9.5-231(a) of the Regulations provides that "[n]o structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division." Under the Regulations, the Property is in a "Native" or "NA" land use district. 2/ Section 9.5-239 of the Regulations lists the uses that are allowed in "NA" land use districts. "Resource extraction," which is defined in Section 9.5-4 of the Regulations as "the dredging, digging, extraction, mining and quarrying of limerock, sand, gravel or minerals for commercial purposes," is not among the uses listed. "Resource extraction" is permitted as a major conditional use in Industrial land use districts under Section 9.5-249(c)(2) of the Regulations, however. Sections 9.5-431, 9.5-432 and 9.5-433 of the Regulations specifically address the subject of resource extraction. They provide as follows: Section 9.5-431. General. All resource extraction activities in the county shall comply with the provision of this division in order to ensure that such activities do not adversely affect long-term ecological values in the county and that abandoned extraction sites will be restored. Section 9.5-432. Resource extraction standards. All resource extraction activities shall: Be designed so that no area of excavation, storage area for equipment or machinery or other structure or facility is closer than: Two hundred (200) feet to any property line; and Five hundred (500) feet to any residential nonresource extraction related commercial use in existence on the date the permit is issued; Be located on a parcel of at least twenty (20) acres; Be fenced or blocked so as to prevent unauthorized entry into the resource extraction operation through access roads; Will not involve excavation below sixty feet; Will not cause the introduction of saline aquifer waters into fresh water aquifers; Will involve restoration of disturbed areas at the completion of the resource extraction operation in accordance with section 9.5-433, and the implementation of the restoration plan is secured by a surety bond or other guarantee of performance approved by the county; and Operate solely between the hours of 8:00 a.m. and 5:00 p.m. Section 9.5-433. Restoration standards. All parcels of land which are used for resource extraction operations shall be restored as follows: Restoration shall be a continuous process, and each portion of the parcel shall be restored within two (2) years after resource extraction is completed for that portion; Topsoil shall be restored in approximately the same quality and quantity as existed at the time the resource extraction operation was initiated; Any body of water created by the resource extraction operation shall have a graded shoreline with a slope not to exceed one (1) foot vertical to five feet horizontal; All equipment, machinery and structures, except for structures that are usable for recreational purposes or any other use authorized in the area, shall be removed within six (6) months after the resource extraction operation is terminated and restoration is completed; and Reclamation shall to the maximum extent practical result in the reestablishment of the vegetation association which existed prior to the extraction activity. A "nonconforming use," as that term is used in the Regulations, is defined in Section 9.5-4 thereof as "any use lawfully being made of any land, buildings or structure, other than a sign, on the effective date of this chapter or any amendment thereto, rendering such use nonconforming, which does not comply with all of the regulations of this chapter, or any amendment thereto. Section 9.5-143(a) of the Regulations provides that "[n]onconforming uses of land or structures may continue in accordance with the provisions of this section." Among "the provisions of this section" are the following found in subsection (c) thereof: Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which the nonconforming uses are located; or Occupancy of additional lands. According to Section 9.5-141 of the Regulations, the purpose of the provisions relating to "nonconforming uses" is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-115 of the Regulations is entitled "Expiration of building permit." Subsections (a) through (d) of this section provide as follows: A building permit shall automatically expire and become null and void if work authorized by such permit is not commenced within sixty (60) days from the effective date of the permit, or if such work, when commenced, is suspended or abandoned at any time for a period of one hundred twenty (120) consecutive days. The effective date of a building permit authorizing land clearing or which authorizes development as defined in chapter 380, Florida Statutes, shall be as provided in rule 9J-1.03, Florida Administrative Code, as long as the parcel is located within an area of critical state concern. If the work covered by the permit has not commenced or has commenced and been suspended or abandoned, the building official may extend such permit for a single period of sixty (60) days from the date of extension is [sic] made prior to the expiration date of the initial permit. If the work covered by the permit has commenced, is in progress, but has not been completed and in the opinion of the building official and the director of planning, is being carried on progressively in a substantial manner, the permit shall remain in effect until completion of the job. If work has commenced and the permit becomes null and void or expires because of lack of progress or abandonment, a new permit covering the proposed construction shall be obtained before proceeding with the work under regulations in effect at the time the new permit is issued. Section 9.5-115 of the Regulations makes no reference to "renewal" permits. The first excavation permit Krause & Sons received after the effective date of the Regulations (Building Permit No. 17487A) was issued on May 1, 1987. In issuing Building Permit No. 17487A, the County used the same printed building permit form that it had used in issuing the 1986 blasting permit and the 1985 and 1986 excavation permits. In addition, it provided an appropriate "permit card" for posting. Typed in under "WORK DESCRIPTION" on Building Permit No. 17487A was the following: "Excavation Pit- RENEWAL- Supplement to Permit #13289A, 11332A, 10203A, 9543A, 7791A, 6498A, 4884A, 3492A." Typed in under "REMARKS" on Building Permit No. 17487A was the following: APPLICANT MUST APPLY FOR A BLASTING PERMIT IF THIS ACTIVITY IS REQUIRED Issued under the condition that restoration required from Army Corps be completed. Biologist recommends approval as per Monroe County Code. On April 26, 1988, Mrs. Krause, on behalf of Krause & Sons, filed an application to renew Building Permit No. 17487A. Accompanying the application was a sketch of the Property. On the sketch, Mrs. Krause had drawn an arrow pointing to the southern portion of the Uplands. Above the arrow she had written, "proposed to dig approx 19,444 cu yds," and in the area to which the arrow was pointing, she had written, "Approx. 19444 cu yds to be dug." There was a delay in the issuance of the requested permit. On April 4, 1989, the permit (Building Permit No. 8910000731) was finally issued. An application to renew Building Permit No. 8910000731 was filed on April 3, 1990. The requested permit (Building Permit No. 9010000645) was issued on June 21, 1990. The effective date of the permit was August 28, 1990. An application to renew Building Permit No. 9010000645 was filed on April 16, 1991. The requested permit (Building Permit No. 9110002601) was issued on July 11, 1991. In the "Remarks" section of the permit the following was typed: RENEWAL OF PERMIT 90-10000645, 89-10000731 AND 17487A. PLANNING APPROVAL 6-25-91 AG BIOLOGIST RECOMMENDS APPROVAL AS PER MONROE COUNTY CODE. THIS PERMIT DOES NOT AUTHORIZE BLASTING. A SEPARATE PERMIT IS REQUIRED. Neither the application nor the permit specified the amount of fill to be excavated or where on the Property the excavation was to occur. There was only one area of the Property however, where there was further excavation to be done. This area was the Uplands. Respondents had hoped, pursuant to the authorization provided by the permit, to merely remove the already blasted fill material that remained there. 3/ No further blasting was needed. The Department appealed Building Permit No. 9110002601 to the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission enter a final order (1) granting Respondents permission to engage in the resource extraction activity they seek to undertake pursuant to Building Permit No. 9110002601, to wit: the completion of the excavation of the Uplands, and (2) specifying that Respondents shall comply with the applicable provisions of Sections 9.5-432 (resource extraction standards) and 9.5-433 (restoration standards) of the Regulations to the extent that these provisions do not operate to effectively prevent them from excavating any land that, on the effective date of the Regulations, was being lawfully used for resource extraction activity. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of December, 1992. STUART M. LERNER 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 17th day of December, 1992.
