Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Protection enter a final order enforcing the prohibitions contained in both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve. RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Subordinate and unnecessary. 8.-9. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted in part and rejected in part, as reflected in the Findings of Fact. Accepted as representative of dead low tide. Subordinate and unnecessary. Accepted and incorporated. Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer. Accepted but subordinate and unnecessary. Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.) Accepted but subordinate and unnecessary. Accepted and incorporated. 20.-21. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.") 25.-27. Accepted and incorporated. Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.) Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary. 21.-24. Rejected as being conclusion of law. 25.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as conclusion of law as to who is "responsible." 35.-54. Accepted and incorporated to the extent not subordinate or unnecessary. 55. Rejected as not proven. Also, conclusion of law. COPIES FURNISHED: Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County Post Office Box 1533 St. Augustine, Florida 32085-1533 Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel Department of Environmental Protection Mail Station 35 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent violated Section 112.011(1)(a), Florida Statutes, by terminating Petitioner's employment?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner was employed by Respondent from March 15, 1989, to June 5, 1997, the effective date of his termination. 1/ At the time of his termination, Petitioner occupied the position of Combined Control Board Relief Operator-Power Resources. In this position, at least twice a week, Petitioner monitored and operated the control board in the City of Lake Worth Power Plant (which provides power to the City of Lake Worth through steam generators). As Petitioner acknowledged during his testimony at hearing, this was a "critical job," and it was "very important" that he "be totally sober" and mentally alert while performing his job duties. On or about September 26, 1996, while he was still employed by Respondent, Petitioner was arrested by a City of Lake Worth police officer for possession of cocaine. The cocaine the police officer found in Petitioner's possession was in Petitioner's boot. Petitioner was on his way to work at the time of his arrest. Law enforcement authorities asked Petitioner to disclose the names of those who had sold him the cocaine, but Petitioner refused to do so. Lloyd Gibbs, Respondent's Power Resources Superintendent and Petitioner's supervisor, was made aware of Petitioner's arrest. On October 3, 1996, Mr. Gibbs delivered to Petitioner the following "Notification of Random Testing [for] Alcohol and Controlled Substances": Due to the events, which include[] your arrest September 26, 1996 and your statements given to me and the Lake Worth Police Department, and in accordance with Resolution 28-91 (City of Lake Worth Personnel Policy) Section 18, Alcohol and Substance Abuse, C3, Cit[y's] right to test for alcohol and controlled substance, 2/ you are hereby notified you will submit to blood and/or urine analysis in accordance with this policy (on a random bas[i]s until further notice from this office). The City of Lake Worth is a drug free work place. We [e]xpect our employees to perform their duties free from the effects of alcohol and substance abuse. In or around December of 1996, Petitioner submitted to a random drug test. The test revealed the presence of cocaine in his system. On February 5, 1997, Petitioner received the following letter from Respondent's personnel and risk manager, David Murphy: As a result of your positive drug screen and your previous agreement . . . with the City of Lake Worth, dated October 3, 1996, regarding use of illegal drugs, you are to be referred to the city's EAP for evaluation and possible treatment protocol as prescribed by the City Policy. In order for your employment to remain intact, (Combined Control Board Relief Operator-Power Resources) you will adhere to the below conditions. If you deviate in any way or test positive again, you will be immediately terminated. MANAGEMENT/UNION REFERRAL TO EAP Immediate enrollment with the EAP. To be verified by CFS; Authorize Release of Information & treatment plan information to this office; Strict adherence to treatment plan in full; You['re] placed on leave; Since you have no available time on the books, you are placed on Administrative Leave Without Pay, until you are cleared by the EAP, to return to work; Failure to comply with the EAP treatment plan will result in dismissal as being AMA (against medical advice). I have reviewed the possibility of any additional information surfacing that may be pertinent to this issue. Your Union representatives are aware of the above findings as being representative of the facts that we have gathered to date, based upon first hand knowledge. Your signature below, is your acknowledgment of receipt of this letter and agreement with the City to comply with the above conditions. Please return it to me within 5 days of receipt. Thank you. We wish you the best in your prescribed plan. After receiving Mr. Murphy's February 5, 1997, letter, Petitioner enrolled in a non-residential drug rehabilitation program offered by the Center for Family Services of Palm Beach County, Inc. (CFS). (He continued to work during the period of his rehabilitation.) Section 18C of the City of Lake Worth's Personnel Policy, which is contained in Resolution No. 28-91, provides as follows regarding the subjects of "[r]ehabilitation" and "[d]iscipline [p]ending [r]ehabilitation": 6. Rehabilitation. In the event that the results of the blood/alcohol test or second urine verification test are positive, the employee will, within ten (10) days thereafter, enter and remain in an alcohol/substance abuse program approved by the City until the administrator is able to state that the employee has been successfully rehabilitated. While in the program the employee will be allowed to return to work if the program administrator approves; if not, the employee may be placed on leave until the program administrator approves return to work, not to exceed six (6) months. If the employee is not rehabilitated, he or she may be disciplined. If the employee is rehabilitated, as determined by the program administrator, the employee shall be allowed to return to work without being disciplined. The employee may use accrued leave while in the rehabilitation program, or take leave without pay. If the employee fails to enter or complete the program, or fails to or cannot be rehabilitated, the employee shall be subject to appropriate discipline. . . . 8. Discipline Pending Rehabilitation. No employee shall be disciplined for alcohol/substance abuse if the employee enrolls and completes a rehabilitation program. This Section does not prevent the City from disciplining the employee for the consequences of the employee's alcohol/substance abuse (e.g. absenteeism) but rehabilitation shall be a factor in determining the severity of the discipline. By letter dated April 8, 1997, CFS informed Mr. Murphy that Petitioner had "successfully completed 3/ his treatment" program (which entailed meeting with a counselor on six separate occasions over a two-month period). By letter dated May 29, 1997, from Respondent's Utilities Director, Harvey Wildschuetz, which reads as follows, Petitioner was notified of the termination of his employment, effective June 5, 1997: This letter is to officially inform you that effective June 5, 1997, your employment as a Combined Control Room [Relief] Operator is being terminated. As you are aware, the City sets high standards for conduct, and it is regrettable that we must take this action. This disciplinary action is based on your violation of Resolution 28-91, Section[] 24.B, Types of Offenses, Group III Offenses, paragraphs 9 and 16. Any questions you have in regard[] to your separation from employment will be discussed at a Pre-Termination conference to be held at the Utilities Department Administrative Conference Room located at 1900 2nd Avenue North on June 5, 1997, at 9:00 a.m. At all times material to the instant case, Section 24 of Resolution No. 28-91 has provided, in pertinent part, as follows: DISCIPLINARY ACTIONS GENERAL It is the intent of the City that effective supervision and employee relations will avoid most matters which necessitate disciplinary action for violation of the rules, and disciplinary action for violation of the rules is NOT intended to restrict the rights of anyone but to insure the rights of all and secure cooperation and orderliness throughout the personnel system. The City recognizes the fact that each instance differs in many respects from somewhat similar situations. The City retains the right to treat each occurrence on an individual basis and without creating a precedent for other cases which may arise in the future. The following rules and regulations are not to be construed as a limitation upon the retained rights of the City. The rules and regulations provide recommended standard penalties to apply for specific offenses. This means that a more severe penalty may be issued than that which appears in the standard procedure if it is felt necessary. Offenses requiring disciplinary action are divided into three types to reflect degrees of severity of offenses. In each group for each rule, consideration will be given to the severity of the offense, the cost involved, the time interval between violations, the length and quality of service records, and the ability of the employee concerned. In each case where the penalty is modified from the recommended standard penalties, the reasons for such modifications will be noted in writing. In addition to the general types of offenses listed below, infractions of written department rules and regulations will subject the employee to disciplinary action. In all cases, the department head shall notify the employee of the action taken and a copy of such notice will be sent to the Personnel Director or designee for placement in the employee's personnel folder. TYPES OF OFFENSES The three (3) groups of offenses and a guide for standard penalties recommended are as follows: . . . . GROUP III OFFENSE FIRST OFFENSE- Discharge . . . . 9. Immoral, unlawful or improper conduct or indecency, either on or off the job, which would tend to affect the employee's relationship to his/her job, fellow workers, reputation or goodwill in the community. . . . 16. Conviction or guilt of a felony, or a misdemeanor of the first degree which would tend to affect the employee's relationship to his/her job, either on or off job. . . . Pursuant to Section 26 of Resolution No. 28-91, which at all times material to the instant case has provided as follows, all permanent City of Lake Worth employees are entitled to a pre-termination hearing prior to the effective date of their termination: In accordance with law, all permanent employees must be given a pre-termination hearing. The hearing must be given prior to the effective termination date to provide the employee with an opportunity to discuss the specific allegations prom[p]ting the proposed termination with the department head involved. Upon full and fair consideration of all facts and information presented at the hearing, the City Manager or designee shall notify the employee in writing with respect to his or her decision regarding termination. Such a pre-termination hearing was held for Petitioner's benefit. Following this pre-termination hearing, Mr. Wildschuetz sent Petitioner the following letter, dated June 5, 1997: After consideration of all information presented at the Pre-Termination Hearing, your employment with the City of Lake Worth is hereby terminated effective June 5, 1997. You acknowledged that you were in possession of illegal drugs and have violated the City's personnel policies. Please return all materials, books, uniforms, operating keys and gate cards currently in your possession to the Assistant Power Resources Superintendent, Shannon Bates, by 5:00 p.m., Friday, June 6, 1997. Subsequent to the termination of his employment, Petitioner was formally charged by the State Attorney's Office with possession of cocaine. Pursuant to a plea agreement, Petitioner entered a pretrial diversion program (the Prosecutor's Alternative Drug Diversion program, or PADD), which he successfully completed. As a result, he was not adjudicated guilty of the crime with which he had been charged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the "agency" in this case (the City of Lake Worth) dismissing Respondent's complaint that the termination of his employment by the City constituted a violation of Section 112.011(1)(a), Florida Statutes. DONE AND ENTERED this 8th day of October, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 8th day of October, 1999.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
Findings Of Fact Respondent, Woodland, is made up of property owners in Woodland Lakes subdivision, an area abutting on Woodland Bayou, situated off Pensacola Bay in Santa Rosa County, Florida. Petitioner, Margaret B. Miller, owns property directly across the channel which forms the entrance to Woodland Bayou and which is the proposed location for the bulkhead and riprap forming the subject matter of this dispute. Mrs. Miller and her late husband purchased their property, which is not located in Woodland Lakes subdivision, in 1957. Their lot is located on Pensacola Bay and at the time she and her husband purchased the property, they were looking for an area that had the special characteristics of this lot she now owns. It included big trees, a gentle slope to the Bay, and a view out over Pensacola Bay across a sandy peninsula which extended out into the bay a considerable distance and which they owned. At the time they made their purchase, Woodland Bayou opened into Pensacola Bay at the East End but the opening near Mrs. Miller's property was obstructed by a sandy beach. The extent of channel blocking and obstruction caused by this sandy beach was the subject of a lawsuit between the Millers, the Woodland Lake Property Owners Association, and the State of Florida 1n June, 1972. The substance of that suit was concerned with ownership of the land which extended out from the Miller property into Pensacola Bay over which certain of the parties desired to cut a channel from Woodland Bayou into Pensacola Bay. There was substantial conflict in the testimony at the time as to whether there was a natural channel existing across the Miller property prior to 1957-1958 or not, or, in the alternative, whether the Millers filled in an existing channel thereby blocking reasonable entrance to Woodland Bayou. The answer to that question is irrelevant to the issue in this hearing. However, a judgment of the Circuit Court entered on June 13, 1972, awarded to the Millers title to property which extended out across the currently existing channel dredged subsequent to that time by the Respondent, Woodland, to a point into Pensacola Bay. The decision of the court also awarded to the Trustees of the Internal Improvement Fund a section of property directly west of the northern tip of the Miller property consisting of a strip approximately 40 feet wide and a maximum of76 feet long lying approximately perpendicular to the currently-existing channel and through which it was envisioned the channel would be dredged from the entrance of Woodland Bayou out to Pensacola Bay. By so doing, the canal would have made a left turn coming out of the bayou into Pensacola Bay but the Miller's property, which was not then split by the canal, would be left intact. According to Mr. Hunsley, the dredging completed after the entry of the final judgment in the Quiet Title suit was not done consistent with the dictates of that judgment. Instead, the channel was cut straight out from the bayou across the Miller property, and so it remains to this day. He contends, however, that historically, the channel existed in this very spot and that the Millers as well as other property owners in the area at the time, closed the channel off by dredging and filling at their own expense some time in 1957 and 1958. Regardless of the history regarding the genesis of the channel, however, the fact remains that the channel now exists in a straight line from Woodland Bayou to Pensacola Bay across the Miller property and has so since 1972 when it was dredged subsequent to the lawsuit. The channel, being a tidal channel and subject to sand drift caused by wind and wave action, tends to become clogged with sand on a periodic basis. Because of the increased clogging currently experienced, sometime prior to September 9, 1983, the officers of Woodland circulated a petition to secure the permission of all the neighbors in the subdivision to construct a bulkhead on the Woodland side of the channel across from and up channel from the Miller property. This petition, which at the time did not include riprap, was approved by all property owners in the subdivision except for 2 and was then forwarded to the Gulf Breeze City Council to allow the Council to assess costs in the amount of approximately $600.00 per property owner against the property owners in the event DER approved the permit to construct the bulkhead. Mrs. Miller was not solicited to sign the Petition nor will she be assessed any of the costs of construction of the bulkhead if approved since she is not a property owner in the subdivision in question. The petition was circulated, according to Mr. Kettenring, who has lived in the area for several years, because of the increasing sedimentation. To his knowledge, the channel was last dredged in 1982 and 1983. Prior to that time, during the period 1979-1981, he recalls at least three fish kills in the bayou but none since the dredging was accomplished. The residents of Woodland and the surrounding owners are all on septic tanks. There is no city sewage service to this area and every year there is a change in the clarity of the water in Woodland Bayou in the summer. During warmer weather, as the temperature increases, the water becomes cloudy and full of algae. However, after dredging was accomplished and the channel was opened further both in width and in depth, the water quality improved considerably. Mr. Kettenring has seen patterns of sand drifting from the point into the channel. The area has changed considerably in that the point has scalloped out into the channel blocking it. As a result, the bayou, which is at the mainland source of the channel, is currently somewhat brackish. Access of boat owners to the bayou has become impaired. On September 9, 1983, the application submitted by Woodland was received by DER, and a determination was made that the proposed project lay in Class III waters of the State, the standards for which are outlined in Rule 17-3.121, Florida Administrative Code. Shortly thereafter on September 28, 1983, DER notified Woodland that the application was incomplete in that the application fee had not been submitted, aerial photographs of the area were required, and a consent for the use of State-owned land was necessary. In addition, it was determined that Woodland needed to provide detailed plans for compliance with State water quality standards as well as a hydrographic survey. All requirements were subsequently met except for the survey. The application originally called for an additional 300 foot bulkhead to the east of the area in question here and the hydrographic survey referred to that bulkhead. Subsequent to the filing of the application, however, that bulkhead portion of the project was deleted and when that was done, the need for the hydrographic survey was obviated. Since all other shortcomings in the application had been corrected, the project was then reviewed by Mr. Hambrick who recommended the installation of riprap in front of the remaining bulkhead and grass, and on December 20, 1984, DER published an intent to issue for the project. The project in question is a 150 feet long bulkhead fronted with 35 cubic yards of riprap at the toe. The bulkhead will be located at the entrance channel of Woodland bayou across from Petitioner's property. Mr. Hambrick, who initially reviewed the application for DER and who signed off on it in December, 1984, visited the site in question on at least 2 or 3 occasions in relation to the application and because Mrs. York, Miller's neighbor, also had an application for a bulkhead pending. He looked at the property and determined that the amended application did not call for riprap. However, because the new law requires riprap in front of seawalls, he recommended that the riprap be installed here where there is no grass. In other words, according to Mr. Hambrick, riprap will be placed flush against the bulkhead where no sea grasses exist but will curve out in front of the sea grasses where there is grass at the foot of the bulkhead which will proceed behind the grassed area. The purpose of using riprap is to dissipate wave energy. Riprap will diminish the effect of the wave and its adverse effect on Petitioner's property. Mr. Hambrick is of the opinion that installing the bulkhead and riprap would not cause or increase damage to Petitioner's property and based on the criteria he used in analyzing the project, he feels that it is in the public interest. The factors he used in his consideration of this project include: that an erosion problem exists in the area, that bulkheading and riprapping would reduce the need for dredging, that there is a history of fish kills in the area, that maintaining a channel would help flush out the bayou, and homeowners on the bayou would have access to Pensacola Bay and their interests constituted a part of the public interest. Since the revised application was completed in October, 1984, it therefore had to comply with the criteria outlined in the new water quality bill which are two-fold in general application. These are: that the project will have no adverse effects on water quality of Woodland Bayou but would likely improve it through the increased flushing of the bayou as a result of maintaininq the channel, and that a need for dredging would be reduced since the channel will not shoal in as much. According to Mr. Hambrick, at the present time there is a collapsing and sluffing off of soil along the channel, which has increased since his prior visit in November, 1984. In his analysis of the project, he considered the effects that the project would have on the public interest, water quality, wildlife and fish in the area, and the historical and archeological aspects of the area. In his opinion, riprap would provide a habitat for marine wildlife which is a plus factor and would help to maintain a shallow shore environment. It would help to maintain a stand of marsh grass that is presently in the area and which is being covered with sand coming from the eroding point. In his opinion, there would be no adverse effect on the archaeological aspects of the area nor is there any indication of any adverse effect on the public interest, including Mrs. Miller. He also considers there would be no adverse effect on marine productivity which, in his opinion, would very likely improve as a result of the project. In his opinion, overall the project will maintain and even enhance the public interest considerations in the area and there would be no damage to the marine bottom by the installation of the riprap. Since the bulkhead will be fronted by riprap, it is not considered a vertical seawall which would be prohibited by the statute as it is currently constituted. Mr. Hambrick is quite certain in his opinion that since Mrs. Miller's property is already bulkheaded and riprapped, there would be no further erosion of her property. Consequently, there would be no adverse ecological effect notwithstanding the fact that Mrs. Miller contends that keeping the channel open would be a continuing trespass to her property. She also contends that when she put in her bulkhead, now at water's edge, it was designed as a retaining wall and was located in sand some substantial distance from the water. When the channel was cut across her land, the beach from the channel to the "retaining wall" eroded and when it appeared the wall would be undercut as well, she put in the riprap. All of this would be perpetuated by the construction of Woodland's project which would keep the channel open and keep it naturally closing as she believes it would do if left alone. In short, Mr. Hambrick's analysis of the situation including his personal visits to the site lead him to conclude that the project will not: harm water quality in the area, increase the number of boats using the channel, influence the speed of boats that use the channel, or increase erosion of Petitioner's property. This opinion is supported by that of Dr. Echternacht, a hydrographic engineer who is also convinced that construction of the proposed bulkhead and riprap would not cause any erosion to Petitioner's property. In fact, the riprap in front of the bulkhead will act to absorb wave energy and since it cannot be placed in a vertical manner, it reduces that amount of reflected energy. The bulkhead and riprap as proposed here would reduce the amount of soil infusion into the channel and thereby the amount of dredging needed. The technical aspects of the proposal were also considered by Mr. Fancher, the dredge and fill supervisor for DER in the Northwest District. When he reviewed the application, including Mr. Hambrick's proposal for riprap, he concurred with it. In order to appropriately receive a permit, applicants must show that the application conforms to both water quality and public interest standards. After his review of the entire project, Mr. Fancher concluded that this project would not adversely affect water quality standards and would not adversely affect but in fact might promote public interest considerations. When the Florida Legislature passed its new water quality bill in October, 1983, it prohibited the construction of most vertical seawalls. In Mr. Fancher's opinion, what is proposed here is not a vertical seawall and there is no evidence submitted by Petitioner to refute this. In fact, there was no evidence presented by Petitioner, save her own testimony which does not serve to overcome the expert opinions to the contrary, that the proposed project fails to meet the tests set out under the laws of this State.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that the Respondent, Woodland Lake Property Owners, Inc.'s permit to construct a bulkhead be issued as modified. RECOMMENDED this 11th day of October, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 Administrative Hearings this 11th day of October, 1985. COPIES FURNISHED: Kenneth G. Oertel, Esq. Oertel and Hoffman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 J. B. Murphy, Esq. 506 S. Palafox Street Pensacola, Florida 32501 Brad Thomas, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Rd. Tallahassee, Florida 32301
The Issue Whether respondent's Florida Teacher's Certificate should be revoked or otherwise disciplined on charges of professional misconduct, including gross immorality, acts involving moral turpitude, conduct which seriously reduces his effectiveness as an employee of the school board, intentionally exposing a student to unnecessary embarrassment or disparagement, exploiting a professional relationship with a student for personal gain, and failing to conform to standards of ethical conduct, in violation of Section 231.28, Florida Statutes, and Rules 6B-1.06(3)(e) and (h), and 6B-1.01(3), Florida Administrative Code.
Findings Of Fact Respondent holds Florida Teacher's Certificate 342171, covering the area of physical education. At all times material to the administrative complaint, respondent was employed as a physical education teacher at Lake Worth High School in the Palm Beach County School District. From 1973, when he joined the Palm Beach County School District, to the date of his suspension for the acts complained of in the administrative complaint, he was consistently rated to be a good teacher. His teaching ability and performance were not in question. He also maintained a close relationship with his students, frequently assisting them beyond the requirements of his job. On the afternoon of May 23, 1983, at approximately 2:30 p.m., respondent entered the K-Mart department store in Lantana, Florida, accompanied by his niece, Cathy Brown. While shopping in the store, he selected a 68-quart cooler, bearing a price tag of $43.58, then proceeded to the hardware department, where he selected a Black and Decker electric drill, bearing a price tag of $22.99. He left the hardware department and proceeded to the garden/patio area or Garden Shop. Before reaching the double glass doors separating the main building from the Garden Shop, he stopped and placed the large box (containing the 68-quart cooler) and the small box (containing the electric drill) on the floor at the end of an aisle approximately 30 feet from the double glass doors. Be then walked directly to the double glass doors opening onto the Garden Shop, and glanced in the direction of the checkout counter located at the Garden Shop exit. He then walked back past the cooler and electric drill, and proceeded into the appliance department where he met Cathy Brown. Ms. Brown had previously selected a package of hair curlers, bearing a price tag of $1.38. He and Ms. Brown briefly examined several items on a display counter in the appliance department, then returned to the place where he had placed the cooler and electric drill. He picked up these two items and proceeded to the Garden Shop; Cathy Brown, who was carrying the hair curlers, accompanied him. Jeanette Grimes, a 17-year-old Lake Worth High School student, was--at that particular time--the cashier at the register located at the Garden Shop checkout counter. Ms. Grimes knew respondent. Be had been her physical education teacher for two years and basketball coach for one year. She considered him a friend. As respondent approached the checkout counter where Ms. Grimes was serving as cashier, he placed the box containing the cooler and the box containing the electric drill on the floor at the far end of the checkout counter, not on the counter itself. At that time there were customers at the checkout counter who were being waited on by Ms. Grimes. He and Cathy Brown walked away from the checkout counter and began looking at plants. After Ms. Grimes had finished checking out the customers at her counter, he and Ms. Brown again approached the checkout counter, where he engaged Ms. Grimes in conversation. At no time did he place any items on the counter for Ms. Grimes to examine and ring up. At that time she rang up a $1.00 item and a $5.00 item, totalled the transaction at $6.00, then rang up a $.30 tax, and totalled the transaction at $6.30. He handed Ms. Grimes $10.00 in payment for the merchandise. She mistakenly rang up $10.00 for an additional item of merchandise, voided the $10.00 item off her tape, and re-rang $10.00 as cash tendered. At that point the cash register opened and indicated that change in the amount of $3.70 was due. Ms. Grimes gave respondent $3.70 in change and a receipt for the transaction. During the course of ringing up the transaction, the items of merchandise remained on the floor at the end of the counter. Ms. Grimes did not pick up the items and examine them for a price tag while ringing up the amounts. Upon the completion of the transaction, Ms. Brown engaged Ms. Grimes in conversation. Ms. Brown handed to Ms. Grimes the box containing the electric drill and the package containing the curlers; Ms. Grimes placed the items into a bag which she gave to Ms. Brown. Respondent then picked up the box containing the 68-quart cooler and left the store, accompanied by Ms. Brown, who carried the bag containing the curlers and the electric drill. Both respondent and Ms. Brown were aware that they had not paid the full price for the merchandise, and that what they were doing was wrong. Mr. Frank Heim, K-Mart's Lobs Prevention Manager, (store detective) observed respondent's activities in the K-Mart continuously, from the time respondent selected the electric drill in the hardware department to his exit from the store. Mr. Heim observed the transaction at the checkout counter, then immediately proceeded to Ms. Grimes' register, examined the register tape, and proceeded to the parking lot to ask that respondent return to the store. Mr. Heim located respondent at his (respondent's) truck in the parking lot. Respondent had placed the cooler in the back of his truck and Cathy Brown was still holding the bag containing the curlers and the electric drill. Mr. Heim identified himself to respondent, advised him of a problem with the purchase which he had just made, and requested that he return to the store with the merchandise to clear the matter up. Respondent replied that he had paid for the merchandise and had a receipt, that it was not his fault if the cashier rang up the wrong prices. After some additional conversation, respondent removed the cooler from the back of his truck and accompanied Mr. Heim back to the store. Upon entering the store through the Garden Shop entrance, respondent placed the cooler on the floor just inside the entrance, then stopped and attempted to discuss the matter with Mr. Heim. Mr. Heim advised respondent that they could not discuss the matter at that location, that they would have to go to his office. As they approached Mr. Heim's office, respondent again stopped, placed the cooler and the bag containing the other two items on the floor, and stated to Mr. Heim that he was not going inside his office. Mr. Heim replied that they could not discuss the matter in the store, and that respondent would have to accompany him inside his office. Respondent replied that he did not have time to discuss the matter, that he was in a hurry and had to leave. Mr. Heim then advised respondent that he was not free to leave and that he was being detained for shoplifting. Respondent became agitated, stated "You've got your stuff back," and began walking away. Mr. Heim sought help from others, then blocked respondent's path at the glass doors between the main store and the Garden Shop. He told respondent not to make the situation worse by trying to leave the store, but respondent attempted to force his way by Mr. Heim. Mr. Heim grabbed him by the arm and a brief scuffle ensued. At that point, respondent ripped up his cash register receipt and discarded the remnants onto a display counter. Mr. Heim immediately retrieved the remnants and later Scotch- taped the pieces together. After respondent became calmer, he returned with Mr. Heim to his office. After entering the office, Mr. Heim advised respondent of his "Miranda" rights. Mr. Heim asked him for identification and asked him to empty his pockets in order to make sure he had no weapons. Respondent removed a total of approximately $22.00 from one of his socks while in the office. Respondent admits that at the time he entered the K-Mart store, he had only approximately $30.00 on his person. The total retail price of the three items, according to the price tags affixed to each, totalled $67.95. In response to Mr. Heim's questions, respondent continuously stated that it was not his fault that the cashier rang up the wrong prices and that he paid her the amount she rang up. Conflicting accounts of this incident were given by Mr. Heim and respondent. Taking into account Mr. Heim's detached and professional manner, and his lack of apparent bias or motive to falsify, it is concluded that his testimony is more credible than respondent's, and is persuasive. As a result of this incident, respondent was arrested and charged with the crime of retail theft. Based upon the circumstances described herein, Jeanette Grimes was fired by the K-Mart department store. She was also arrested and charged with the crime of retail theft. Jeanette Grimes' job at K-Mart was a requirement for one of her school classes, "Work Experience." As a result of her being fired, she failed the course. Respondent's effectiveness as a teacher was seriously reduced as a result of his conduct and the accompanying notoriety which it received in the community. The circumstances of his offense, his arrest, and his suspension from his teaching position, all received notoriety through publication of articles in three newspapers of general circulation in the Lake Worth community.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Education Practices Commission find respondent guilty of violating Section 231.28 and Rule 6B-1.06, as alleged, and revoke his Florida Teacher's Certificate. DONE and ENTERED this 4th day of May, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire P. O. Box 1694 Tallahassee, Florida 32302 John Chamblee, Esquire 202 Cardy Street Tampa, Florida 33606 Donald L. Griesheimer, Executive Director Department of Education Education Practices Commission Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301
Findings Of Fact The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line. The fact that the Southwest Water Management District had previously established feet as the minimum flood level for Lake Juliana adds credence to the line established as described above. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding. DONE AND RECOMMENDED this 29th day of November, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of November, 1994. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bob Chipman Fish Haven Lodge One Fish Haven Road Auburndale, FL 33823
The Issue The issue is whether the Department should issue Environmental Resource Permit and Sovereign Submerged Lands Authorization No. 43-0197751-003 to Reily.
Findings Of Fact Parties The Department is the agency that approved the permit at issue in this proceeding. The Department is responsible for protecting the water resources of the state in conjunction with the water management districts, and it is also responsible for authorizing the use of sovereignty submerged lands pursuant to a delegation of authority from the Board of Trustees of the Internal Improvement Trust Fund. The activities authorized by the permit are as follows: The purpose of the project is to install a 395 linear foot upland retaining wall, with one 10 linear foot return, located at least 5-feet landward of the Mean High Water Line, and an 85 linear foot seawall, with one 10 linear foot return, located at the Mean High Water Line. Riprap shall be installed at a 2:1 (Horizontal:Vertical) slope along the 85 linear foot seawall, and will extend out a maximum of 4-feet waterward of the toe of the new seawall. [3] Reily is the applicant for the permit. Reily owns approximately 17.74 acres of property along Indian River Drive in Jensen Beach, just north of the Jensen Beach Causeway. The Reily property extends from the Indian River on the east to Skyline Drive on the west. Indian River Drive runs north and south through the east side of the property. The Reily property to the east of Indian River Drive is undeveloped except for an existing restaurant, Dena’s, which is on the southern end of the property. There is an existing “RV park” on the Reily property to the west of Indian River Drive. The project will be located to the east of Indian River Drive. That portion of the Reily property is approximately one acre in size, and is only 149 feet wide at its widest point. The property is 24 feet wide at its narrowest point, and more than half of the property is less than 68 feet wide. Petitioners live in single-family homes to the west of the Reily property. Each of their homes is within 300 feet of the Reily property to the west of Indian River Drive, but more than a quarter of a mile from the property on which the permitted activities will be located. Petitioner Anthony Parkinson sometimes drives by the property where the permitted activities will be located when he takes his daughter to school; he has had breakfast at Dena’s several times; he looks at the property from the causeway; and, on at least one occasion, he and his daughter looked at vegetation in the water adjacent to the Reily property for a school project. Mr. Parkinson testified that the project will negatively affect his quality of life because he “came to Jensen Beach because of the natural shoreline and the protection that it afforded to residents in terms of natural beauty” and that, in his view, the project “just adds to the incredible bulk that we have here in the property in terms of building in our natural shoreline.” Petitioner Michael Cilurso drives by the property where the permitted activities will be located on a fairly regular basis. He goes onto the property “occasionally” to “look around.” He has waded in the water adjacent to the property and has seen blue crabs, small fish, and underwater vegetation. Mr. Cilurso testified that the project will affect him in two ways: first, he will no longer be able to “go from the road and just walk down and wade around in [the river] and enjoy the natural resources;” and second, the proposed development of the overall Reily property will affect his “quality of life” because “the density [is] going to be more than what we thought would be a fit for our community.” Petitioner Thomas Fullman can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.” The Permit (1) Generally The permit authorizes the construction of an 85-foot- long seawall and a 395-foot-long retaining wall on the Reily property and the placement of riprap on the sovereignty submerged lands adjacent to the seawall. The seawall will be located on the mean high water line (MHWL). The riprap will be placed adjacent to the seawall, below the MHWL, and will consist of unconsolidated boulders, rocks, or clean concrete rubble with a diameter of 12 to 36 inches. The retaining wall will be located five feet landward of the MHWL, except in areas where there are mangroves landward of the MHWL. In those areas, the retaining wall will be located "landward of the mangroves". The permit does not require the retaining wall to be any particular distance landward of the mangroves or even outside of the mangrove canopy. The drawings attached to the permit show the retaining wall located under the mangrove canopy. The permit does not authorize any mangrove trimming. The areas landward of the seawall and retaining wall will be backfilled to the level of Indian River Drive. There will be swales and/or dry retention areas in the backfilled areas to capture storm water and/or direct it away from the river. The retaining wall will connect to an existing seawall on the Conchy Joe property immediately to the north of the Reily property. The seawall will connect to the approved, but not yet built seawall on the Dutcher property immediately to the south of the Reily property. The permit requires the use of erosion control devices and turbidity curtains during the construction of the walls in order to prevent violations of state water quality standards. (2) Permit Application and Review by the Department On or about June 23, 2005, Reily sought a determination from the Department that the seawall and retaining wall were not subject to the Department’s permitting jurisdiction. The project, as initially proposed, did not include the placement of riprap along the seawall. The Department informed Respondent in a letter dated October 11, 2005, that “the proposed seawall is within the Department’s jurisdiction.” The letter further stated that the Department was going to “begin processing [the] application as a standard general permit,” and it requested additional information from Reily regarding the project. The Department’s request for additional information (RAI) asked Reily to “justify the need for a seawall” and to “provide a detailed explanation” as to why the “use of vegetation and/or riprap is not feasible at the site” for shoreline stabilization. Reily responded as follows: Recent hurricanes have destroyed any vegetation that existed within the area of the proposed seawall. Shoreline has been lost and the DOT has had to backfill nearby upland areas and repair the roads due to significant erosion. The application is proposing to place riprap along the foot of the proposed seawall. There is no reason to believe that there will not be more storms in the near future and it is the applicants’ [sic] position that the seawall for this area is the only way to assure permanent shoreline stabilization and would be in the public’s best interest. The RAI also asked Reily to provide “a detailed statement describing the existing and proposed upland uses and activities.” (Emphasis in original). In response, Reily stated: “The existing upland use is an R.V. resort complex. The proposed use will remain the same.” The RAI also asked Reily to “provide details on the current condition of the shoreline at the site, including the location of mangroves and other wetland vegetation" and to "indicate if any impacts to these resources are proposed.” (Emphasis supplied). In response, Reily stated: “Please see plan view drawing sheet 2 of 4 that clearly shows that the proposed retaining wall will be located landward of the existing mangroves.” The sheet referenced in the response to the RAI does not show the location of wetland vegetation as requested by the Department. The referenced sheet is also inconsistent with other drawings submitted by Reily (e.g., sheet 3 of 4), which show that the proposed retaining wall will be located under the mangrove canopy, not landward of the existing mangroves. Reily’s response to the RAI was submitted on or about February 23, 2006. The Department gave notice of its intent to issue the permit on April 19, 2006. The permit included a number of general and specific conditions imposed by the Department. The permit states a petition challenging the issuance of the permit must be filed “within 14 days of publication of the notice or within 14 days of receipt of the written notice, whichever occurs first.” Notice of the Department’s intent to issue the permit was not published, and the record does not establish when Petitioners received written notice of the permit and the “notice of rights” contained therein. Mr. Cilurso acknowledged that he “found out about the DEP permit to Mr. Reily [approximately] six or eight months before [his] deposition in October [2006]” and then discussed it with the other Petitioners, but that testimony does not establish when the Petitioners received actual written notice of the permit. Petitioners’ challenge to the permit was filed with the Department on or about July 3, 2006. (3) The Related Pitchford’s Landing Project Contrary to the representation made by Reily to the Department during the permitting process, the evidence presented at the final hearing establishes that Reily is proposing to change the use of the upland property from an RV park to a residential development known as Pitchford’s Landing. A master site plan for the Pitchford’s Landing development was submitted to Martin County for approval in April 2006. The site plan (Pet. Ex. 10) shows extensive residential development to the west of Indian River Drive, including single- family lots and multi-story condominium buildings; construction of a sidewalk, bike path, pool, cabana, public pier, and riverwalk to the east of Indian River Drive; the refurbishment of Dena’s restaurant; and the "proposed seawall." Petitioners were aware that the plans for Pitchford’s Landing included a seawall by April 2006, but the evidence was not persuasive that they had received written notice of the Department’s intent to issue the permit at that time. The Pitchford’s Landing development will require changes to the land use designation of the Reily property in the Martin County Comprehensive Plan as well as zoning changes. Those local approvals had not been obtained as of the date of the final hearing. The plans for the Pitchford’s Landing development are being revised based, at least in part, on opposition from Petitioners and others involved in an “association” known as The Jensen Beach Group. Petitioners Cilurso and Fuller are active members of the group, and Petitioner Parkinson has also participated in the group’s activities. Bruce Jerner, one of Reily’s consultants, testified to his understanding that the pool, cabana, and riverwalk shown on the master site plan are being removed from the Pitchford’s Landing development. However, there is no evidence to suggest that the Reily property to the east of Indian River Drive and/or the other improvements on that property (including the hardened shoreline authorized by the permit) are being removed from the Pichford’s Landing develoment. The more persuasive evidence establishes that the proposed seawall, retaining wall, and riprap are part of the larger Pitchford’s Landing development. The walls were referred to on the master site plan for the development; they were depicted and discussed in an advertising brochure as an amenity of the development; and signs advertising Pitchford’s Landing are located on the Reily property to the east of Indian River Drive on which the seawall and retaining wall will be located. There is no evidence that the Pitchford’s Landing development has received a permit from SFWMD under Part IV of Chapter 373, Florida Statutes. The master site plan for Pitchford’s Landing shows several “dry retention areas” to the west of Indian River Drive, and as noted above, there will be swales and/or dry retention areas in the backfilled areas behind the retaining wall and seawall to capture storm water and/or direct it away from the river. It cannot be inferred from that evidence alone, however, that the Pitchford’s Landing development will require permits from SFWMD under Part IV of Chapter 373, Florida Statutes. Merits of the Project The Indian River in the vicinity of the Reily property is a Class III waterbody, an outstanding Florida water (OFW), and part of the Jensen Beach to Jupiter Inlet Aquatic Preserve. The Jensen Beach to Jupiter Inlet Aquatic Preserve is one of three aquatic preserves that encompass the Indian River Lagoon system that extends from Vero Beach to Jupiter Inlet. The Jensen Beach to Jupiter Inlet Aquatic Preserve is 37 miles long and encompasses approximately 22,000 acres of surface water area. The entire Indian River Lagoon system is 49 miles long, with approximately 33,000 acres of surface water area. The Management Plan that was adopted for the Jensen Beach to Jupiter Inlet Aquatic Preserve in January 1985 described the Indian River Lagoon system, and explained its ecological importance as follows: The Indian River Lagoon area is a long, shallow lagoonal estuary important in this region for its value to recreational and commercial fishing, boating and prime residential development. The preserve is in a rapidly growing urban area affected by agriculture and residential drainage. The majority of the shoreline is mangrove fringed, with scattered development in single family residences and a few condominiums. The lagoon is bounded on the west by the Florida mainland and on the east by barrier islands. The Intracoastal Waterway runs the length of the lagoon, which is designated as a wilderness preserve. The estuary is an important home and nursery area for an extensive array of fish and wildlife. The major problems in the continued health of this area include the construction of major drainage networks that have increased the fresh water flow into the estuary, and the loss of wetland areas and water quality degradation associated with agricultural drainage and urban runoff. Additionally, the Intracoastal Waterway and the maintained inlets have changed the historical flushing and circulation within the lagoon system. The Management Plan explained that the “major objectives of the aquatic preserve management program are to manage the preserve to ensure the maintenance of an essentially natural condition, and to restore and enhance those conditions which are not in a natural condition.” The Management Plan recognizes “the rightful traditional uses of those near-shore sovereignty lands lying adjacent to upland properties,” and with respect to bulkheads, the Management Plan states: Bulkheads should be placed, when allowed, in such a way as to be the least destructive and disruptive to the vegetation and other resource factors in each area. Approved uses which do destruct or destroy resources on state-owned lands will require mitigation. The mitigation will include restoration by the applicant or other remedy which will compensate for the loss of the affected resource to the aquatic preserve. Most of the shoreline along the Reily property is a gently sloping sandy beach that has been previously disturbed, and is largely barren of vegetation. There are, however, areas along the shoreline where dense vegetation exists, including wetland vegetation and three stands of mature red and black mangroves. Birds, fish, and wildlife have been observed on and around the Reily property. However, there is no credible evidence that any listed species use the uplands or near-shore waters where the project will be located. The sovereignty submerged lands immediately adjacent to the Reily property on which the riprap will be placed are barren, sandy, and silty. There are seagrasses in the vicinity of the Reily property, but they are 30 to 50 feet from the shoreline. The seagrasses include Johnson’s seagrass, which is a listed species. There are no significant historical or archeological resources in the vicinity of the Reily property, according to the Department of State, Division of Historical Resources. In 2004, Hurricanes Frances and Jean made landfall in Martin County in the vicinity of the Reily property. The hurricanes washed out portions of Indian River Drive, including a portion of the road approximately one-half mile north of the Reily property. After the hurricanes, Martin County considered placing bulkhead along the entire length of Indian River Drive to provide shoreline stabilization and to prevent further damage to the road in major storm events. The county did not pursue the plan because it determined that it was not financially feasible. The portion of Indian River Drive along the Reily property did not wash out during the 2004 hurricanes. Nevertheless, on November 4, 2004, because of concerns for the stability of the shoreline along the Reily property, the Department issued an Emergency Field Authorization to the prior owner of the property allowing the installation of 160 linear feet of riprap along the shoreline. The riprip authorized by the Emergency Field Authorization was to be placed considerably further landward than the structures authorized by the permit at issue in this case. The record does not reflect why the riprap was not installed. The evidence was not persuasive that the Reily property has experienced significant erosion or that the project is necessary to protect Indian River Drive or the upland property from erosion. The project will, however, have those beneficial effects. No formal wetland delineation was done in the areas landward of the MHWL or the areas that will be backfilled behind the proposed seawall and retaining wall and, as noted above, Reily did not identify the location of wetland vegetation and any impacts to such vegetation in response to the RAI. Mr. Jerner testified that, in his opinion, there are no wetlands landward of the MHWL in the area of the seawall, and that any wetlands in the area of the retaining wall are waterward of that wall, which will be at least five feet landward of the MHWL. The Department’s witness, Jennifer Smith, testified that it was her understanding that the wetlands did not extend into the areas behind the seawall or retaining walls, but she acknowledged that she did not ground-truth the wetland boundaries and that wetland vegetation appeared to extend into areas that will be backfilled. Petitioners’ expert, James Egan, testified that the wetlands likely extended into areas that will be backfilled based upon the topography of the shoreline and the wetland vegetation that he observed, but he made no effort to delineate the extent of the wetlands in those areas and he testified that he would defer to the Department's wetland delineation if one had been done. The Department’s wetland delineation rules in Florida Administrative Code Rule Chapter 62-340 contain a detailed quantitative methodology to be used in making formal wetland boundary delineations. That methodology is to be used only where the wetland boundaries cannot be delineated through a visual on-site inspection (with particular attention to the vegetative communities and soil conditions) or aerial photointerpretation in combination with ground truthing. Thus, the Department’s failure to do a formal wetland delineation (with soil sampling, etc.) in the project area was not per se inappropriate, as Mr. Egan seemed to suggest. That said, the more persuasive evidence fails to establish that Reily made an appropriate effort to delineate the landward extent of the wetlands in the project area. No delineation of the wetland areas was provided in response to the RAI, and Ms. Smith’s testimony raises more questions than it answers regarding the correctness of Mr. Jerner’s conclusory opinion that the wetland boundary is waterward of the retaining wall. Without an appropriate delineation of the wetland boundaries, it cannot be determined with certainty whether or not there are wetlands in the areas that will be backfilled. The evidence establishes there may be wetlands in those areas; and if there are, the impacts to those wetlands have not been assessed or mitigated. Riprap is a better method of shoreline stabilization than a vertical seawall without riprap. The riprap helps to prevent shoaling by absorbing wave energy, and it also provides habitat for benthic organisms, crustaceans, and small fish. Native vegetation provides these same benefits, and all of the experts agreed that it is the best method of shoreline stabilization from an environmental standpoint. The use of native vegetation to provide shoreline stabilization along the Reily property is not a reasonable alternative under the circumstances. First, the shoreline has not experienced any significant vegetative recruitment since the 2004 hurricanes. Second, the property is not wide enough to accommodate the amount of vegetation that would be needed to stabilize the shoreline. Third, the properties immediately to the north and south of the Reily property are already (or soon will be) protected by seawalls and/or riprap, rather than native vegetation. The project will not adversely affect the property of others. The evidence was not persuasive that the project will cause erosion or other impacts to the adjacent properties, particularly since the adjacent properties have, or soon will have hardened shorelines. The project will not adversely affect the conservation of fish and wildlife and, to the contrary, the riprap will provide a benefit to fish and wildlife by providing shelter and habitat for benthic organisms, crustaceans, and small fish. The project will not adversely affect endangered or threatened species or their habitat. The only listed species shown to exist in the vicinity of the project, Johnson’s seagrass, is 30 to 50 feet from the shoreline, which is too far away from the project to be affected even if, as suggested by Petitioners' experts, the impact of wave energy on the walls will cause increased turbidity and sedimentation. The project will not adversely impact the fishing or recreational values or marine productivity in the area. The waters in the vicinity of the project are not shellfish harvesting areas, and the riprap will provide beneficial habitat for small marine life. The project will not adversely affect navigation. The riprap will extend only four feet into the Indian River in an area of shallow water far from the channel of the river. The project will not cause harmful erosion or shoaling or adversely affect water quality in the area. The evidence was not persuasive that wave energy will routinely impact the retaining wall to an extent that will cause increased turbidity or sedimentation in the surrounding waters, and all of the experts agreed that the riprap will help to prevent this from occurring along the seawall. Moreover, the swales and/or dry retention areas behind the seawall and retaining wall will help to filter storm water runoff from Indian River Drive and the adjacent upland properties, which may enhance the water quality in the vicinity of the project. The project will not result in any adverse secondary or cumulative impacts to the water resources. The adjacent properties already have hardened shorelines. The permit conditions include adequate safeguards (e.g., turbidity curtains and erosion control devices) to protect the water resources in the aquatic preserve during construction of the project. Any impact (either positive or negative) of the project on the aquatic preserve and the Indian River Lagoon system as a whole will be de minimus in light of size of the system in comparison to the small size of the project and its location between two hardened shorelines near a man-made causeway.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing Petitioners’ challenge to the permit/authorization for a lack of standing, but if the Department determines that Petitioners have standing, it should issue a final order denying permit/authorization No. 43-017751-003 absent an additional condition requiring an appropriate wetland delineation to show that the upland aspects of the project will occur outside of the mangrove canopy and any other wetland areas landward of the MHWL. DONE AND ENTERED this 12th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 12th day of February, 2007.
Findings Of Fact At all times pertinent to the issues involved herein, Petitioner, Henry I. Whatley, owner of Hank's Septic Tank Service, was the holder of a permit to operate a septic tank cleaning service issued by the Polk County Health Unit of DHRS. DHRS was the agency charged with regulating operation by the Petitioner. In early June, 1987, Richard Lee Coleman, a Commissioner with the Winter Haven Lake Region Boat Course District, along with members of the press, was involved in a boat-borne examination of several of the northern lakes in the lake chain which made up a part of the District's jurisdiction. As the party was leaving Lake May, going south on the canal joining Lake May with Lake Shipp, Mr. Coleman noticed a white liquid storage truck parked on property abutting the canal, property identified as owned by Petitioner. At the back of the truck, a young man, later identified as Petitioner's son, had opened a valve allowing a 4 to 6 inch stream of grey-brown material pour out from the truck to the ground. When the young man saw the boat coming, he immediately stopped the dumping and started to drive off. Another Commissioner in the group yelled at him to stop, which he did. The Coleman party pulled its boat over to the bulkhead and received permission from Petitioner's son to come on the property. While the group was talking with the young man, Mr. Coleman walked over to the dump site, a filled area which sloped off toward a swampy wetland to the east which constitutes an extension of the lake system. He observed the effluent which had come from the truck draining across the area into the swamp. Mixed in with the effluent were such solid materials as tampon containers and lumps of waste material which, from the smell, was from septic tanks. Mr. Coleman took a sample of the effluent materiel in a sample bottle which had been provided to him by the health department. Just as Mr. Coleman finished taking the sample, Mr. Whatley came up to the group and in the course of the ensuing conversation, indicated he had been dumping effluent there for 10 years without problem and felt there was no harm in it. Mr. Coleman did not want to discuss the matter with Petitioner and left the area. In the company of a reporter who was on the trip with him, Mr. Coleman took the sample to the health department where he left part for analysis, and took the remainder to the Winter Haven water department where the chemist, Ms. Dennis, agreed to analyze it for systems the health department analyst could not look for. A week later, on June 13, 1988, Officer Quarles was operating the police patrol boat in the area when he received a call that a truck was dumping sewage into the canal. When he got to the purported site, he did not see a truck at or near the canal, but saw one about 100 feet east of the canal, parked on an incline with the rear hatch open. On top of the truck, up near the front, he saw Mr. Whatley with a hose, running water into the top hatch. A powerful smelling pile of sand was on the ground outside the back hatch where the water was coming out. This was the same odor of sewage he detected from the water when he entered the canal from Lake May. Officer Quarles called for someone to bring him a sample container into which he placed a sample of the sludge from the center of the pile. Quarles asked Petitioner to stop washing out the truck and Petitioner complied. The sludge at the back of the truck was up to twelve inches deep in parts but the water it contained did not seem to be running off the site. Instead, it was going into the ground. The sludge sample gathered by Mr. Quarles was taken to the Winter Haven health department where it was analyzed for fecal coliform bacteria and fecal streptococci. In October, 1987, Petitioner pleaded no contest in Polk County Court to a charge of depositing a deleterious substance in a lake and was fined $106.00. After the entry of the Court's order, the Department revoked Petitioner's permit to operate a septic tank cleaning service and in place thereof, issued him an interim permit under which he could operate until the expiration of his period of probation. When he submitted his application for a new permit, on December 23, 1987, it was denied because his activities were considered to constitute a pollution hazard. Petitioner does not deny either he or his son was washing out the truck on the dates and at the sites in question. He had been having difficulty stopping the truck because of the heavy buildup of sand in the tank which had to be removed so the truck could pass inspection. As a result, he was cleaning out the truck on his own property, a four acre piece of land which contains its own small lake and which is bordered on one side by 900 feet of the canal between Lake May and Lake Shipp. He was not arrested on either occasion, but several months after the last incident, he was notified to appear in County Court. He was advised by his attorney that he would be fined $106.00 and would be required to do some community service and, thereafter, upon the advice of counsel, pleaded no contest to a charge of illegal dumping of septic tank seepage into the lake chain in the county. He contends that he was told by both the judge and his lawyer that his license to operate his business would not be affected by his plea. As a result of the refusal to renew his permit, he has been relegated to doing repair work in his own name and has been able to continue to service his accounts with a truck borrowed from a competitor. He contends that if he does not get his own permit, he will be put out of business and will have to dispose of his land, the end sought by his wife who is in the process of divorcing him and who wants the land. Both Lake May and Lake Shipp consistently have the highest bacteria count in the chain. Both are used for fishing, water skiing, and other recreational purposes and the bacteria count, checked periodically, usually twice a year, is "alarmingly" high. Admittedly, there are sources other than Petitioner's property which cause bacterial pollution to the lakes, such as storm water drains and industry. Based on tests run in the area, however, it does not appear the industrial waste contains human waste bacteria. Though Petitioner was not dumping directly into the canal, the effluent from his dump was observed to run into the swamp which carries into the lake system. The water samples taken to the health department in this case were initially reviewed by Mr. Tucker, a biological scientist, who routinely chemically tests water from the lakes using the Environmental Protection Agency approved "most probable number" test. He checks for total coliform bacteria, (either animal or vegetable), fecal coliform bacteria, (animal), and fecal streptococci which can determine what animal provided the contamination. The lakes involved here are usually very low in fecal coliform bacteria, showing an average of less than 16 - 200 colonies per ml of water. Fecal streptococci count is usually in the low teens. With these levels, the water in the chain is usually pretty good except for the few trouble spots such as the storm drains and industrial inflows described above. The tests he ran on the water sample submitted by Mr. Coleman showed extremely high bacteria count. The concentration was so high he was unable to distinguish individual colonies even at a dilution rate of 1 to 10,000. The ample, which at this level was off the scale, showed a solid mass of bacteria. The streptococcus count was also well above what normal lake water would show. The sample obtained by Mr. Quarles running water through the sand was also so high as to be off the scale. Ordinarily an incubation period of 48 hours is required to get a reading on tests such as these. In this case, Mr. Tucker got a reading after only 8 hours even using a different method for analysis than that used on the Coleman sample. The sample's bacteria count was so concentrated, a comparison with normal lake water was impossible. Ordinarily, introduction of bacteria like this in the concentrations shown here, could destroy the lake and produce in humans anything from scarlet fever to simple diarrhea. Ms. Dennis, the water plant chemist who conducted the additional tests on the water sample brought in by Mr. Coleman, evaluated chemical oxygen demand, (COD), biological oxygen demand, (BOD), and the PH factor which, in this case, was neutral. The COD test, which shows how much oxygen is used by chemical activity caused by the presence of chemicals or organics, normally averages 430 in raw sewage. Here, the sample showed 11,552. The BOD test, which shows how much oxygen is being used by organisms in the water averages 150 - 250. Here, the sample showed 1400. The higher the number on these two tests, the greater the degree of contamination. Ms. Dennis also ran other tests. Ammonia in the water shows what the microorganisms use for food. Whereas the average is usually 10 - 40 ppm in raw sewage, the sample in question showed 41. Organic nitrogen is usually 1 - 10 ppm in raw sewage. Here it was 200 ppm. Nitrate levels were not significantly above average. Taken together, the tests run by Ms. Dennis on the Coleman samples showed counts much higher than the counts for raw sewage generally in Winter Haven. Mr. Whatley claims he has been in business for 19 years without having any difficulty with the health department. He denies any health hazard, claiming that any harmful bacteria in the waste are killed by the many household chemicals which end up in the septic tank with the waste. He holds himself out as an example, claiming he has worked with this substance for years and has never been made sick by it. Chemical analysis, however, is far more significant and convincing evidence of danger than Mr. Whatley's health and clearly indicates that bacteria in the waste were alive and active.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that Petitioner's application for a permit to operate a septic tank cleaning service be denied. RECOMMENDED this 29th day of July, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of July, 1988. COPIES FURNISHED: Henry I. Whatley 127 Strain Blvd. Lakeland, Florida 33801 Edward Haman, Esquire HRS District VI Legal Counsel W. T. Edwards Facility 4000 E. Buffalo Avenue Tampa, Florida 33614 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
