The Issue The issues in this case are: (1) whether the Tampa Port Authority is an agency subject to the rulemaking requirements of Chapter 120, Florida Statutes (2006)1; and, if so, (2) whether Respondent's statements and policies in an e-mail from the Tampa Port Authority's general counsel constitute an unadopted rule within the meaning of Section 120.56, Florida Statutes; and (3) whether specified provisions in the Tampa Port Authority's "rules" are an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an applicant for a marine construction permit from Respondent. Respondent, Tampa Port Authority, is the local authority empowered to issue permits for marine construction in areas within its jurisdiction. Legislative History of Tampa Port Authority The Legislature enacted Chapter 23338, Laws of Florida (1945) (hereinafter referred to as the "1945 Act" or "Chapter 23338"), which established a Port District in Hillsborough County, Florida, to be known as the "Hillsborough County Port District" (hereinafter referred to as "Hillsborough County Port District" or "Port District"). Pursuant to Section 2 of Chapter 23338, the Hillsborough County Port District comprised and included the territory within Hillsborough County as described in the 1945 Act. However, the designated territory did not include all of Hillsborough County. The 1945 Act created and designated the Hillsborough County Port Authority as the governing body and authority for the Hillsborough County Port District. Later, the name of the governing entity for the Port District was changed from the Hillsborough County Port Authority to the Tampa Port Authority5 (hereinafter referred to as the "Tampa Port Authority" or "Port Authority"). The Tampa Port Authority is, and has been since its inception, a political and corporate body whose operation is a proper governmental function."6 Chapter 23338 was a special act, which, by it own terms, would become effective "only upon the affirmative vote of a majority of the votes cast at a special election" called and conducted by the Hillsborough County Election Board.7 The 1945 Act further provided that only "duly registered and qualified voters residing within the territorial boundaries of the [Hillsborough County Port] District were eligible to vote" in the special election. See § 23 of Chap. 23338. The referendum passed and, thereupon, the 1945 Act became effective. In January 1948, the submerged lands located within the boundaries of the Port District, as described in the 1945 Act and pursuant to the Certificate of Territorial Designation No. 19396, were conveyed to the Tampa Port Authority.8 The submerged lands conveyed to the Tampa Port Authority were within the boundaries of Hillsborough County and included in the Government Channel in Hillsborough Bay and the waters of Tampa Bay and Old Tampa Bay, all located in Hillsborough County, Florida. Chapter 70-716, Section 2, Laws of Florida, revised the Port Authority's enabling act by expanding the territory of the Hillsborough County Port District to "comprise and include all the territory within Hillsborough County." In November 1970, in accordance with Chapter 70-716, Section 2, Laws of Florida, and pursuant to the Certificate of Territorial Designation No. 25215, all the submerged lands lying within Hillsborough County were conveyed to the Tampa Port Authority.9 As a result of the 1970 conveyance, the jurisdiction of the Tampa Port Authority was extended to include all the submerged land within the Port District. Since 1970, the Hillsborough County Port District has comprised and included all of the territory within Hillsborough County, including all the submerged lands lying within that county. See Chap. 70-716, § 2; and Chap. 95-488, § 2, Laws of Florida. In 1984, the Legislature enacted Chapter 84-447, Laws of Florida, which superseded and repealed Chapter 23338, as amended. Eleven years later, the Legislature enacted Chapter 95-488, Laws of Florida, which superseded and repealed Chapter 84-447, Laws of Florida. The foregoing acts made no changes affecting the designated geographic territory of the Hillsborough County Port District. Further, those acts made no significant or substantive changes regarding the powers and duties of the Tampa Port Authority. Rather, Chapter 84-447, Laws of Florida, and later, Chapter 95-488, Laws of Florida, merely consolidated, compiled, and codified extant laws pertaining to the Hillsborough County Port District. The legislative intent in enacting Chapter 84-447 and, subsequently, Chapter 95-488, Laws of Florida, was to "preserve, confirm, and perpetuate the ratification by referendum of the Hillsborough County Port District and the Hillsborough County Port Authority by the electorate of the Port District." See Chap. 84-447, § 1 and Chap. 95-488, § 1, Laws of Florida. Jurisdiction, Powers, and Duties of the Tampa Port Authority The Tampa Port Authority has "title to, right of entry upon, and the right to regulate the improvement of any and all submerged lands belonging to the State of Florida contained within the port district," subject to the riparian rights of respective owners of the uplands adjacent thereto. See Chap. 95-488, § 6, Laws of Florida. The Tampa Port Authority has exclusive jurisdiction, control, supervision and management over all publicly-owned docks and wharfs in Hillsborough County Port District. The Tampa Port Authority is required to make or cause to be made investigations, studies, surveys, plans, drawings, etc., as are necessary and, thereafter, prepare and adopt a comprehensive plan for development and improvement of the harbor and shipping facilities of that port district. See Chap. 95-488, § 5, Laws of Florida. The Tampa Port Authority has "all the powers necessary to carry out the provisions of the act" which created the authority. The Tampa Port Authority has the specific responsibility of planning and of carrying out plans for the long-range development of the facilities of and traffic "through the port in the [P]ort [D]istrict." See Chap. 95-488, § 7, Laws of Florida. In addition to the foregoing, the Tampa Port Authority is empowered to do the following: operate, manage, and control all projects acquired or constructed under this act; exercise such police powers as it deems necessary for the effective control and regulation of all facilities, areas, and districts under its jurisdiction; adopt rules and regulations governing the speed, operation, docking, movement, and stationing of all watercraft plying waterways in the port district under the jurisdiction of the Port Authority; and subject to state and federal law, regulate, control, license, and establish safety regulations for any common carrier of passengers by water which common carrier is operated for compensation in intrastate commerce over a regular route and which embarks from and returns to any portion of the waters within the port district. See Chap. 95-488, §§ 7(k),(n), (s), and (y), Laws of Florida. Marine Construction in the Port District Chapter 95-488, Section 25, Laws of Florida, sets forth the comprehensive scheme for marine construction in the Hillsborough County Port District, including the application and approval process for such construction. Chapter 95-488, Section 25(b), Laws of Florida, provides that anyone filling or dredging "within the boundaries of the [P]ort [D]istrict and bordering on or in the waters of the [P]ort [D]istrict" is required to make application to the Tampa Port Authority for the appropriate permit authorization. For the purposes of regulation of marine construction, the term, "waters of the district," is defined as follows: "Waters of the district" means all waters lying within the port district which are affected by the ebb and flow of the tide; Lake Thonotosassa; Lake Keystone; and those portions of the Hillsborough River, Alafia River and Little Manatee River within the port district upstream from Tampa Bay to the limits of sovereign submerged land ownership." [Emphasis added.] Chapter 95-488, § 25 (a)(13), Laws of Florida. Based on the definition above, the regulatory requirements for marine construction are limited to the confines of the Hillsborough County Port District, which is limited to the territorial boundaries of Hillsborough County. The Hillsborough County Port Authority is required to adopt rules and regulations regarding the receipt, form, and content of the applications for marine construction permits. See Chap. 95-488, § 25(a)(13)(h), Laws of Florida. Chapter 95-488, Section 25(n), Laws of Florida, authorizes the Tampa Port Authority to adopt minimum construction specifications for all marine construction projects subject to approval under that section. At issue in this proceeding are the Tampa Port Authority's requirements for marine construction in the Hillsborough County Port District provided by Chapter 95-488, Subsection 25(n), Laws of Florida. The Port Authority's special acts have provided for specific power to adopt rules and regulations under a procedure that requires notice and a public hearing on the rules being adopted. The process for adoption of rules and regulations of the Tampa Port Authority is specifically mandated by the Legislature in the Port's enacting legislation. The rulemaking procedures specified by Chapter 95-488, Section 25(n), Laws of Florida, which govern marine construction in the Port District, state as follows: Prior to the adoption of such specifications, the port authority shall conduct a public hearing to consider the impact of the proposed specifications. Notice of such hearing, specifying time and place shall follow the same notice procedure as provided in subsection (e). The referenced subsection (e) requires notice in a newspaper of general circulation, published in the Hillsborough County Port District, at least 20 days prior to the hearing. Chap. 95-488, § 25(e), Laws of Florida. There are no provisions in either general or special law or existing judicial decisions that make the Tampa Port Authority expressly subject to the Administrative Procedures Act (APA) for rulemaking.10 Ultimate Findings The Tampa Port Authority was created by a special act and, as the governing body of the Hillsborough County Port Authority, operates only within Hillsborough County. The Tampa Port Authority has not been made expressly subject to the APA for rulemaking procedures. The Tampa Port Authority does not consider itself an agency subject to Chapter 120, Florida Statutes, rulemaking requirements. Consequently, the Port Authority has not complied with any of the Chapter 120, Florida Statutes, requirements for the adoption of its rules challenged by Petitioner. The Tampa Port Authority admits that the alleged "rules and agency statements" challenged by Petitioner were not adopted pursuant to Subsection 120.54(1)(a), Florida Statutes. Further, the Port Authority stipulates that it would not meet the requirements of Subsection 120.52(8)(a), Florida Statutes, since the Tampa Port Authority's rules at issue in this proceeding were not adopted pursuant to Chapter 120, Florida Statutes, requirements.
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 28th day of July, 1993.
Findings Of Fact The Legislature created Respondent in 1963 by enacting Chapter 63-573, Laws of Florida, codified as Chapter 348, Part V, Florida Statutes. Section 348.754(1)(a) authorizes Respondent to construct, maintain, and operate the Orlando-Orange County Expressway System. Petitioner constructs highways. In 1991, Respondent awarded Petitioner with two highway construction contracts. The two construction contracts incorporate by reference the 1991 edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction ("Gray Book"). Commonly used in Florida highway construction, especially on state projects, the Gray Book is a code of standards for road and bridge construction projects. In 1993 and 1994, Petitioner requested $5 million from Respondent in extra compensation for the two construction contracts. In reviewing the requests, Respondent asked Petitioner for various documents, claiming that Article 3-8 of the Gray Book entitled Petitioner to receive these documents for audit. Article 3-8 of the Gray Book states: Upon execution of the Contract, [Respondent] reserves the right to conduct any necessary audit of the Contractor's records pertaining to the project. Such an audit, or audits, may be conducted by [Respondent] or its representatives at any time prior to final payment, or thereafter pursuant to 5/13. [Respondent] may also require submittal of the records from either the Prime Contractor, the Subcontractor or both. For the purpose of this Article, records shall include all books of account, supporting documents and papers deemed necessary by [Respondent] to assure compliance with the contract provisions. Failure of the Contractor or Subcontractor to comply with these requirements may result in disqualification or suspension from bidding for future contracts or disapproval as a Subcontractor at the option of [Respondent]. The Contractor shall assure that his Subcon- tractor will provide access to his records pertaining to the project upon request by [Respondent]. Petitioner declined to give Respondent audit access to all the requested records, taking the position that the records were not necessary and that Article 3-8 did not give Respondent the access to records claimed by Respondent. By letter dated July 11, 1995, Respondent notified Petitioner that it intended to consider whether to suspend or disqualify Petitioner from participating in future public bidding on Respondent's construction contracts. The letter advised that Respondent would hold a public hearing to consider the facts and circumstances of [Petitioner's] failure to provide contract documents requested by [Respondent]. At the hearing the Board will decide whether to suspend or disqualify [Petitioner] for its failure to comply with the Contract." The July 11 letter informed Respondent that it had the right to be represented by counsel, to present oral and written evidence, to cross-examine witnesses, and to present rebuttal evidence. The letter prohibited ex parte communications with members of Respondent's board because they would be acting in a quasi-judicial capacity. The Orlando-Orange County Expressway System consists of about 81 miles of multi-lane limited access highway in Orange County. Respondent's offices are in Orange County, which is where its employees work. Respondent establishes its own annual budget and sets tolls without review by the Legislature or Department of Transportation. Respondent compensates its employees without regard to State of Florida personnel policies or guidelines. Respondent's employees do not receive State of Florida health insurance benefits. They receive health insurance through the Orange County group health policy that covers all otherwise- covered Orange County employees. Transportation issues involve frequent contact between Respondent's employees and employees of the Public Works Department of Orange County and the City of Orlando. Contact between Respondent and the governments in and of surrounding counties is largely limited to participation in the Greater Orlando Metropolitan Planning Organization. In general, Respondent engages in transportation planning for, and studies the transportation needs of, Orange County, but not other counties. In 1994 the Legislature enacted Chapter 94-237, Laws of Florida. Section 11 of Chapter 94-237 created 348.7545, Florida Statutes (1994 Supp.), which authorized Respondent to construct, finance, operate and maintain that portion of the Western Beltway known as the Western Beltway Part C, extending from Florida's Turnpike near Ocoee in Orange County southerly through Orange and Osceola Counties to an interchange with I-4 near the Osceola-Polk County line . . .. Chapter 94-237, Laws of Florida, did not expressly authorize Respondent to exercise powers of eminent domain in Osceola County. In 1995 the Legislature enacted Chapter 95-257, Laws of Florida. Section 61 of Chapter 95- 257 amended 348.7545 to allow expressly Respondent to use its eminent domain power in connection with the Western Beltway Part C. Not considering itself an agency subject to Chapter 120, Florida Statutes, Respondent has not complied with any requirements of Chapter 120 except for the adoption of rules governing bid protests, as provided by 120.53(5). Respondent has not adopted as rules pre-qualification procedures and requirements, disqualification and suspension procedures and provisions, or procedures for formal hearings. Respondent has adopted various rules and policies, but not in accordance with Chapter 120. As far as it is aware, Respondent has not previously considered whether to suspend or disqualify a contractor, and therefore Respondent issued the July 11 letter on an ad hoc basis.
The Issue The issue is whether to approve Steven A. Walker's application for a coastal construction control line (CCCL) permit authorizing him to conduct certain construction activities at 100 Park Avenue, Anna Maria, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: History of the Proceeding Since 2005, Petitioner has owned property at 104 Park Avenue, Anna Maria, Sarasota County, Florida. The parcel fronts on the Gulf of Mexico and is adjacent to property owned by the Stephen A. Walker Land Trust (Land Trust) located at 100 Park Avenue. The Trustee of the Land Trust is Stephen A. Walker, who is the applicant in this proceeding. On March 5, 2009, Mr. Walker filed an application with the Department for a permit authorizing the construction of "a new single family residence with a pool, driveway and multiple structures" seaward of the CCCL on his parcel. See Joint Exhibit 11. The application was accompanied by a letter from the City Planner, B. Alan Garrett, indicating that the proposed activity "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." See Joint Exhibit 3. On June 26, 2009, the Department, through its Bureau of Beaches and Coastal Systems, issued a Final Order granting the application subject to certain general and special conditions. See Joint Exhibit 47. A Notice to Proceed with the construction was issued the same date. See Joint Exhibit 46. Separate written notice of the Department's proposed action was also served on both Petitioner and his attorney. See Joint Exhibits 49 and 50. On July 22, 2009, Petitioner filed his Petition with the Department contesting the proposed agency action. See Joint Exhibit 51. As grounds, Petitioner contended generally that the environmental permitting requirements under Florida Administrative Code Rule 62B-33.0052 had not been met, and that the proposed activity violated both the City's Plan and the zoning code. Id. Evidence regarding the latter allegations was later excluded as being irrelevant. See Order dated March 12, 2010. At hearing, counsel for Petitioner represented that he was no longer alleging that the application did not qualify for a permit under the environmental permitting requirements of the rule. However, he continued to assert that the proposed construction will violate the City's Plan and zoning code. A suit in circuit court has been filed seeking an adjudication of those claims and apparently is still pending. See Friday v. City of Anna Maria, Case No. 2010-CA2369 (12th Cir., Manatee Cty Fla.). Permitting Criteria The general permitting requirements for issuance of a CCCL permit are found in Rule 62B-33.005. There is no dispute that these criteria have been satisfied. Rule 62B-33.008 contains the permit application requirements and procedures. Paragraph (3)(d) of the rule provides that an application for a CCCL permit shall contain the following information: Written evidence, provided by the local governmental entity having jurisdiction over the activity, that the proposed activity, as submitted to the Bureau, does not contravene local setback requirements or zoning codes. Joint Exhibit 3 is a letter dated February 2009 authored by B. Alan Garrett, City Planner, who states that he had reviewed the application and plans filed with him on February 2, 2009, and that the proposed construction "does not contravene the City of Anna Maria local setback and pervious coverage requirements of the zoning code provisions." This letter satisfies the requirement of the rule.
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 granting the application of Stephen A. Walker, Trustee, for a coastal construction control line permit authorizing certain activities seaward of the CCCL at his property in Anna Maria, Florida. DONE AND ENTERED this 24th day of May, 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 24th day of May, 2010.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 21st day of March, 2014.
Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
