Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the Department of Environmental Protection should approve Petitioner’s application for a coastal construction control line permit.
Findings Of Fact Stipulated Facts2 Petitioner, Beach Group Investments, LLC (Beach Group), is a limited liability corporation under Florida law. Its address is 14001 63rd Way North, Clearwater, Florida 33760. On December 19, 2005, Coastal Technology Corporation (Coastal Tech) on behalf of Beach Group submitted to the Department an application for a CCCL permit pursuant to Chapter 161, Florida Statutes, to construct 17 luxury townhome units in two four-story buildings, a pool, a dune walk-over, and ancillary parking and driveway areas (hereafter “the Project”). The Department designated the application as File No. SL-224. The property on which the Project is proposed (hereafter “the Property”) is located between the Department's reference monuments R-34 and R-35, in St. Lucie County. The Property’s address is 222 South Ocean Drive, Fort Pierce, Florida. The Property is located seaward of the CCCL line established in accordance with Section 161.053, Florida Statutes, and Florida Administrative Code Rule Chapter 62B-33. On April 21, 2006, the application was determined to be complete. By letter dated June 5, 2006, the Department notified Beach Group that the Project appeared to be located seaward of the 30-year erosion projection of the seasonal high water line (SHWL), and that in accordance with Section 161.053(6), Florida Statutes, the staff could not recommend approval of the Project since major structures are seaward of the estimated erosion projection. By letter dated July 7, 2006, and subsequent submittals, Beach Group requested a waiver of the 90-day time period for processing completed applications pursuant to Chapter 120, Florida Statutes, until October 31, 2006. On August 30, 2006, Beach Group submitted a certified engineering analysis of the 30-year erosion projection of the SHWL for the Department's consideration pursuant to Florida Administrative Code Rule 62B-33.024(1). Beach Group's analysis determined that the proposed major structures associated with the Project were located landward, not seaward, of the 30-year erosion projection. The Department also performed its own 30-year erosion projection of the SHWL, and determined that the proposed major structures were located seaward, not landward, of the 30-year erosion projection. The Department asserts that the proposed structures are located between 87 feet and 68 feet seaward of the Department's determination of the 30-year erosion projection. The Department disagreed with Beach Group's analysis because the analysis appeared to be inconsistent with Section 161.053(6), Florida Statutes, Florida Administrative Code Rule 62B-33.024, and the Department's own analysis. The Property is located just south of the Fort Pierce Inlet, and landward of a federally maintained beach restoration project that had approximately 14 years of life remaining under the existing Congressional authorization when the permit was submitted to the Department. By proposed Final Order dated November 1, 2006, the Department provided to Beach Group notice of its intent to deny the permit application. The proposed Final Order was received by Beach Group on November 8, 2006. Beach Group's petition for hearing was timely filed with the Department. Since the Department proposes to deny Beach Group's CCCL permit application, its substantial interests are clearly at issue, and it has standing to maintain this proceeding. On December 11, 2006, the Department issued an environmental resource permit for the Project. The Department denied Beach Group’s permit application because the Project extends seaward of the 30-year erosion projection calculated by the Department and because the Project’s impacts to the beach-dune system had not been minimized. The permit was not denied on the basis of the existence, or absence, of a line of continuous construction in the vicinity of the Project. The 30-year Erosion Projection (1) Background Fort Pierce Inlet (hereafter “the inlet”) was constructed by the Army Corps of Engineers in the 1920’s. The channel of the inlet is protected by two jetties that extend several hundred feet into the Atlantic Ocean. The jetties act as a barrier to the littoral transfer of sand from the north to south that would otherwise occur along the beach in the vicinity of the Property. The jetties cause accretion on the beach to the north of the inlet and erosion of the beach to the south of the inlet. The inlet channel beyond the jetties also restricts the littoral transfer of sand in the area. The deepening and widening of the channel in 1995 likely contributed to the increased erosion observed south of the inlet in recent years. The beach to the south of the inlet, including that portion on the Property, is designated as a “critically eroded beach” by the Department. The inlet is the primary cause of the erosion. Congress first authorized beach nourishment south of the inlet in 1965. That authorization expired in 1986. Congress “reauthorized” beach nourishment south of the inlet in 1996. That authorization expires in 2021, but St. Lucie County has requested that the authorization be extended for “another 50 years.” The first “major” beach nourishment south of the inlet occurred in 1971. Subsequent “major” nourishments occurred in 1980, 1999, 2003, 2004, and 2005. Another “major” nourishment is planned for 2007. There was a “moderate” nourishment of the beach in 1995, which included the placement of geotextile groins on the beach just to the north of the Property. “Small” nourishments occurred in 1973, 1978, 1987, 1989, 1990, 1992, 1994, 1997, and 1998. Cumulatively, the nourishments that occurred between the “major” nourishments in 1980 and 1999 involved approximately 419,000 cubic yards of sand, which is more than the volume involved in several of the “major” nourishments. Beach nourishment south of the inlet has been an ongoing effort since it started in 1971. The more persuasive evidence establishes that the nourishment project that is authorized through 2021 is a continuation of the project started in 1971 rather than a separate and distinct project. Various erosion control efforts have been used south of the inlet in conjunction with the beach nourishment efforts. For example, geotextile groins (which are essentially massive sandbags) have been installed and removed on several occasions since the mid-1990’s in order to “temporarily stabilize the shoreline until such measures could be taken to design, permit and construct a long-term solution”; concrete rubble and other riprap has been placed on the beach over the years (without a permit from the Department) to protect upland structures from erosion; and a "spur jetty" was constructed on the south jetty in an effort to reduce erosion south of the inlet. These efforts have not slowed the pace of the erosion or minimized the need for beach nourishment south of the inlet. Indeed, the need for and frequency of “major” nourishments south of the inlet have increased in recent years. Beach erosion south of the inlet will continue to be a serious problem so long as the inlet exists and the jetties remain in place. There is no reason to expect that the inlet or the jetties will be removed in the foreseeable future and, as a result, beach nourishment south of the inlet will continue to be necessary. The Department has recognized the need for continuing nourishment of the beach south of the inlet, as reflected in both the Strategic Beach Management Plan for the St. Lucie Beaches and the Ft. Pierce Inlet Management Study Implementation Plan. Those plans acknowledge the long-term need for continued nourishment of the beach at a rate of at least “130,000 cubic yards on an average annual basis.” The plans do not, however, guarantee that future beach nourishment in the area will occur at that, or any, rate. (2) Rule Methodology Florida Administrative Code Rule 62B-33.024 contains the methodology for determining the 30-year erosion projection, which is the projected location of the SHWL 30 years after the date of the permit application under review. Where, as here, the beach at issue is subject to an ongoing beach nourishment project, the methodology requires consideration of “pre-project” conditions -- i.e., the conditions that existed before the beach nourishment efforts started -- because those conditions are used to project how the beach will migrate landward in the periods over the next 30 years when there may not be any beach nourishment activity. The coastal engineering experts presented by the parties -- Michael Walther for Beach Group and Emmett Foster for the Department -- used essentially the same methodology to determine the location of the 30-year erosion projection. However, the variables that they used in each step of the methodology differed. Step 1: Locate the Pre-Project MHWL The first step in determining the 30-year erosion projection is to locate the pre-project MHWL. If a pre-project erosion control line (ECL)3 has been established in the area, it is to be used as the starting-point for the determination of the 30-year erosion projection. Otherwise a pre-project survey of the MHWL is to be used as the starting-point. Mr. Walther used a 1997 ECL as the starting point for his analysis. Mr. Foster used a March 2002 survey of the MHWL as the starting point for his analysis because he did not consider the 1997 ECL to be an appropriate pre-project ECL. The March 2002 survey of the MHWL is not itself an appropriate starting point for the analysis. The survey is not a “pre-project” survey, no matter how the project is defined; the survey occurred more than 30 years after the nourishments started in 1971, and three years after the first “major” nourishment pursuant to the Congressional reauthorization of the project. Moreover, as discussed below, there is an appropriate pre-project ECL in the area. There are two lines that might be considered to be a pre-project ECL in this case -- (1) the ECL established in 1997, and (2) the South Beach High Tide Line (SBHTL) established in 1968. The 1997 ECL was established based upon a survey of the MHWL performed on May 5, 1997. The survey occurred two years after a “moderate” beach nourishment and the placement of the geotextile groins on the beach. There was also a “small” nourishment in 1997, but the record does not reflect whether that nourishment occurred before or after the survey. The SBHTL was established based upon a survey of the MHWL between 1966 and 1968, prior to the initial nourishment of the beach south of the inlet. It is approximately 65 feet landward of the 1997 ECL. The SBHTL is the functional equivalent of an ECL, and it roughly corresponds to the “best fit line” for the March 2002 survey used by Mr. Foster as the starting point for his determination of the 30-year erosion projection in this case. The Department contends that the 1997 ECL is not based upon a “pre-project” survey of the MHWL because the applicable beach restoration project south of the inlet began in the 1970’s and has been ongoing since that time. Beach Group contends that the applicable project is the current one that is authorized through 2021, and that the 1997 survey preceded the start of the nourishments authorized by that project. The Department has used the 1997 ECL as the starting- point for determining the 30-year erosion projection in several prior permits in the vicinity of the Project,4 and in an April 9, 1999, memorandum discussing the 30-year erosion projection in the vicinity of monuments R-35 and R-36, Mr. Foster stated that “the ECL represents the pre-project [MHWL].” Mr. Foster no longer considers the 1997 ECL to be the appropriate pre-project MHWL for purposes of determining the 30- year erosion projection south of the inlet. He testified that had he been aware of “the complete background” of the 1997 ECL and the extent of the nourishments in the 1980’s and 1990’s, he would have brought the issue to the Department’s attention so that the Department could consider whether the 1997 ECL or “an earlier prenourishment line” was the appropriate pre-project MHWL. Although it is a close question, the more persuasive evidence presented at the final hearing establishes that the 1997 ECL is not an appropriate pre-project MHWL because the applicable “project” includes the beach nourishment efforts started in 1971 that have continued through the present, even though those efforts were intermittent at times. Thus, the appropriate starting point for determining the location of the 30-year erosion projection is the SBHTL, not the 1997 ECL used by Mr. Walther or the March 2002 MHWL survey used by Mr. Foster. Step 2: Locate the Pre-Project SHWL The second step in determining the 30-year erosion projection is to determine the location of the pre-project SHWL. Mr. Walther located the pre-project SHWL 26.4 feet landward of the 1997 ECL. That is the surveyed distance between the MHWL and SHWL in June 2005. Mr. Foster located the pre-project SHWL at the most landward location that the SHWL was surveyed in March 2002. The line is between 50 and 75 feet5 landward of the “best fine” line used by Mr. Foster as the pre-project MHWL, and it is as much as 25 feet landward of the surveyed location of the SHWL in some areas. Mr. Foster used “an average [of] 50 feet” as the MHWL- to-SHWL distance in his analysis of several prior permits in the vicinity of the Project.6 Mr. Foster testified that the distance between the MHWL and SHWL in this area varies “from the 20s in the immediate post-nourishment situations . . . all the way up to 70-some feet” and that the “the averages gravitate towards 40 feet.” Consistent with that testimony, the distance between the surveyed locations of the MHWL and SHWL depicted on Department Exhibit 6 is approximately 40 feet, on average. The MHWL-to-SHWL distance calculated by Mr. Walther is not a reasonable projection of the pre-project distance because it was based upon survey data taken immediately after a “major” beach nourishment when the shoreline was unnaturally steep and, hence, not representative of “pre-project” conditions. The SHWL located by Mr. Foster is also not a reasonable projection of the pre-project SHWL because it was based upon a March 2002 survey (which is clearly not "pre- project"); because it used the most landward surveyed location of the SHWL rather than a “best fit” line or an average of the distances between the surveyed MHWL and SHWL; and because it runs across areas of well-established dune vegetation. In sum, the MHWL-to-SHWL distance calculated by Mr. Walther (26.4 feet) is too low, whereas the distance resulting from Mr. Foster's siting of the SHWL based on the March 2002 survey (50 to 75 feet) is too high. Those distances are essentially endpoints of the range observed in this area, as described by Mr. Foster. A more reasonable estimate of the pre-project MHWL-to- SHWL distance is approximately 40 feet. See Findings 51 and 52. Thus, the pre-project SHWL is located 40 feet landward of and parallel to the SBHTL. That line is not depicted on any of the exhibits, but on Petitioner’s Exhibit 37, it roughly corresponds to a straight line between the points where the red- dashed line intersects the Property’s north and south boundaries. Step 3: Calculate the Erosion Rate The third step in determining the 30-year erosion projection is to calculate an erosion rate. The erosion rate used by Mr. Foster was -7 feet per year (ft/yr). That rate was calculated based upon an average of the shoreline change data for monument R-35 for the period from 1949 to 1967. The rate would have been higher had Mr. Foster averaged the rates for the nearby monuments.7 The erosion rate used by Mr. Walther was -4.9 ft/yr. That rate was calculated based upon an average of the shoreline change data for monuments R-34 to R-39 over the period of 1930 to 1968. An erosion rate of -7 ft/yr south of the inlet was referenced in permit applications submitted by Mr. Walter’s firm, Coastal Tech, for several shore protection structures south of the inlet; was used by Mr. Foster in his review of several prior CCCL permit applications south of the inlet; and was included in reports on the inlet prepared by the Army Corps of Engineers over the years. An erosion rate of -3.3 ft/yr was used and accepted by the Department in its review of another permit application in the general vicinity of the project.8 That erosion rate was based upon data from the period of 1972 to 1994, which is after the beach nourishment started south of the inlet. It is not entirely clear why Mr. Foster chose to use a data set starting in 1949, particularly since his report stated that the “1928-30 survey already shows significant erosion occurring south of the inlet.” His testimony did not adequately explain the choice of that data set. The use of a longer data set is typically more appropriate when calculating a historical rate. In this case, however, the use of the shorter period of 1949-68 is reasonable because the 1930-49 erosion rate was considerably lower than the 1949-68 rate,9 which has the effect of skewing the erosion rate calculated for the longer period of 1930-68. The higher erosion rate calculated by Mr. Foster also better takes into account the increased frequency of the nourishments in recent years as well as the continued need for shore stabilization in the area. In sum, the higher erosion rate of -7 ft/yr calculated by Mr. Foster using the 1949-68 data set better reflects the historical post-inlet, pre-nourishment erosion rate than does the lower erosion rate calculated by Mr. Walther. Step 4: Determine the Remaining Project Life The fourth step in determining the 30-year erosion projection is to determine the “remaining project life” of the “existing” beach nourishment project. It was stipulated that there are 14 years remaining until the currently authorized federal beach restoration project expires. It is reasonable to expect that beach nourishment south of the inlet will continue well beyond the expiration of the current federal project, but there were no other funded and permitted projects in place at the time Beach Group’s permit application was filed. Potential future beach nourishment projects are not considered “existing” under the rule methodology in Florida Administrative Code Rule 62B-33.024 unless they are funded and permitted at the time the application at issue is filed. Mr. Walther used the 14-year remaining life of the existing federal project in his calculation of the 30-year erosion projection, as did Mr. Foster. The “remaining project life” applicable to this case is 14 years, notwithstanding the likelihood of continued beach nourishment in the area beyond the expiration of the existing project. Step 5: Calculate the 30-year Erosion Projection The final step in determining the location of the 30- year erosion projection is a calculation using the variables determined in the previous steps. The calculation is as follows: first, the remaining project life determined in step four is subtracted from 30; then, that result is multiplied by the erosion rate determined in step three to get a distance; and, finally, the SHWL is moved that distance landward of its pre-project location determined in step two. Subtracting the remaining project of 14 years from 30 equals 16 years. Multiplying 16 years by the erosion rate of -7 ft/yr equals 112 feet, which means that the 30-year erosion line is located 112 feet landward of the pre-project SHWL (or 152 feet landward of the SBHTL). That line is not depicted on any of the exhibits, but it roughly corresponds to a straight line than runs across the Property parallel to the SBHTL just landward of the “conc. pad” and “existing conc. Pile caps (typ)” shown on Petitioner’s Exhibit 37. The line is 25 to 30 feet seaward of Mr. Foster’s 30-year erosion projection depicted on that exhibit. (3) Ultimate Finding Regarding the Location of the Proposed Structures in Relation to the 30-year Erosion Projection The Project includes major structures seaward of the 30-year erosion projection, as determined above. Impacts of the Project on the Beach-Dune System The Project includes 17 luxury town home units in two four-story buildings, a pool and spa, landscaping, and an elevated dune walkover. The units will range from 2,700 to 4,400 square feet of living space and are projected to be offered for sale in the $1.5 to $2.5 million range. Beach Group’s principal, Harold Seltzer, testified that the Project is sited as far landward as possible to allow for the development of all 17 units while still complying with the local setback and height restrictions; that the Project’s financial viability depends upon it being developed as proposed; and that the Project cannot be redesigned and remain financially viable. The CCCL permit application included a letter from the City of Ft. Pierce confirming that the Project is consistent with the applicable local development codes. Mr. Seltzer testified that the Project’s local development approvals expired in September 2006 because the CCCL permit had not been issued, and that Beach Group is having to go back through the local permitting process. The seaward extent of the Project is the 1978 CCCL, which is approximately 250 feet seaward of the current CCCL. The buildings on the adjacent properties are also located on the 1978 CCCL. The Project does not extend further seaward than the nearby development, including the structures authorized by the Department in File Nos. SL-162 and SL-173.10 The seaward boundary of the Property is the SBHTL. That line is approximately 295 feet landward of the MHWL established in June 2005, and as noted above, it is approximately 65 feet landward of the ECL established in 1997. The adjacent properties are developed with multi-story residential buildings. There is a densely vegetated dune feature in front of the building to the south of the Property. There is some vegetation, but no discernable dune in front of the building to the north of the Property. The Property as a whole is sparsely vegetated, but there are areas of “prolific vegetation” on the Property. The seaward extent of the vegetation on the Property roughly corresponds to the location of the 1978 CCCL. There are several mature sea grape clusters in the vicinity of that line. The beach in front of the Property is devoid of vegetation. It has a steep slope immediately landward of the water line; a wide (approximately 270 feet) expanse of relatively flat beach; and a gently sloping dune feature that starts just landward of the Property’s seaward boundary, crests approximately 30 feet farther landward, and then gradually slopes downward across the Property all of the way to State Road A1A. The dune feature on the Property is the frontal dune. It is the first mound sand located landward of the beach that has sufficient vegetation, height, continuity, and configuration to offer protective value. The crest of the frontal dune is seaward of the vegetation line on the Property, and ranges in height from +9.7 to +12.2 feet NAVD.11 The seaward toe of the dune is shown on the topographic survey for the Property at elevations ranging from +7.27 to +7.85 feet NAVD. Similar elevations occur on the landward side of the dune crest, just landward of the 1978 CCCL. The vegetation on the Property extends landward of the 1978 CCCL and landward of the line shown on the topographic survey of the Property as the “approximate location of sparse grass and ground cover.” The landward extent of the vegetation does not in and of itself define the landward extent of the dune; changes in the slope of the ground must also be considered. The more persuasive evidence establishes that the landward toe of the frontal dune is landward of the 1978 CCCL, but not as far landward as suggested by Department witness Tony McNeal.12 The landward toe of the dune on the Property is best defined by the elevations landward of the dune crest similar to the elevations shown for the seaward toe of the dune. The Project extends into the frontal dune on the Property, and it will requires minor excavation of the frontal dune, primarily in the area of the proposed pool. All aspects of the project, except for the proposed dune walkover, will be landward of the crest of the frontal dune and the mature sea grape clusters located on the dune. There will be no net excavation on the Property as a result of the Project. The sand excavated for the pool will be placed on-site, and additional beach-compatible sand will be used as fill for the site. Overall, the Project will result in the net placement of approximately 66 cubic yards of sand on the Property. The proposed structures will be elevated on piles, which will allow the beach-dune system to fluctuate under the structures during storm events. The finished floor elevation of the proposed structures is approximately +8 feet NAVD, which is slightly higher than the elevations associated with the toes of the frontal dune. The Project will not destabilize the frontal dune, even though it will encroach into the dune. The impacts of the Project on the beach-dune system will be mitigated by the placement of additional sand into the beach-dune system, as described above. The Project’s impacts will be further mitigated by the enhancements to the frontal dune described in the permit application. Mr. Walther testified that the frontal dune on the Property could “very easily” be enhanced to be of comparable height and magnitude of the dunes on the adjacent properties. The permit application proposes enhancements to the frontal dune as part of the Site Landscaping Plan for the Project. The proposed enhancements include increasing the crest of the dune to a height of +15 feet NAVD, and extensive planting of the dune with sea grapes, beach morning glories, and sea oats. The plantings would extend from the 1978 CCCL to the seaward toe of the existing frontal dune. The dune enhancements proposed in the permit application should be included as a specific condition of the CCCL permit for the Project, if it is approved.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order denying Beach Group’s application for a CCCL permit. DONE AND ENTERED this 19th day of April, 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 19th day of April, 2007.
The Issue The central issue in this case is whether the Department of Environmental Protection (Department) should approve a permit for the applicant, Indian River County (County), to install a prefabricated erosion prevention reef (PEP reef) off the coast of Vero Beach, Florida.
Findings Of Fact The Department is the state agency charged with the responsibility of reviewing and approving permits such as the one at issue. The County is a governmental entity and is the applicant which has requested a permit for an experimental project to be located in Vero Beach, Florida. The Petitioners oppose the proposed project. The project at issue is the installation of a PEP reef system to be located between approximately 300 feet south of reference monument R-80 to approximately 300 feet south of reference monument R-83, in Indian River County, Florida. Because of the uncertainty as to the performance of the proposed project and the potential that it may cause adverse impacts to the coastal system, the Department classified the project as experimental pursuant to Chapter 89-175, Section 27, Laws of Florida. In making its preliminary approval for the permit, the Department required special permit conditions to safeguard the coastal system and marine turtles. Additionally, the Department specified both preconstruction and post installation monitoring and testing. The term of the permit is limited to five years, including three years to monitor the project's impacts. A PEP reef is a prefabricated erosion prevention product installed as a breakwater off the shore. In this case, the product measures approximately twelve feet long and six feet high. The base of the product (which is conically shaped) is approximately 15 feet tapering to a one foot crest at the top. The PEP unit is a proprietary product of a company called American Coastal Engineering (ACE). The County proposes to contract with ACE for the manufacture and installation of the units. It is proposed that the PEP units would be installed in an alignment parallel to the beach for a total, though not continuous, length of 3000 feet. The proposed location for the PEP reef in Vero Beach is in an erosion area as identified by the Department's Beach Restoration Management Plan. Historically, the subject beach has experienced a steady and continuous erosion which has been exacerbated during storm conditions. The proposed site is suitable for the experimental nature of this project. At least one past storm event caused substantial damage to the beach front at the project site. Walkways, utilities, and other public improvements were substantially damaged. Past efforts to curb the erosion have proved unsuccessful. Such efforts included beach renourishment, and the installation of seawalls or bulkheads. Future beach renourishment is undesirable for the project site due to the lack of compatible sand, and its high cost. More important, however, are concerns over the negative environmental impacts to nearshore reefs which could result from a large scale renourishment project. For over ten years the County has sought a solution to the erosion that has plagued the project site. To that end, the County established a special committee, the Beach and Shore Preservation Advisory Committee, to review options available and to recommend long-term solutions to the County. In June, 1993, the County contracted with Petitioner Walther to prepare a map of the nearshore hardbottom reef and to evaluate alternatives for beach restoration at the project site. Such work was completed, and recommendations from Mr. Walther were not incompatible with the installation of the proposed reef. The proposed installation should not adversely affect the hardbottom reefs which are in the vicinity of the PEP units. Such hardbottom is considered environmentally sensitive; however, no PEP unit will be placed on the hardbottom or so close to it that it will disturb the organisms located within the hardbottom community. In December, 1993, the County submitted an application for an experimental coastal construction permit to install the PEP reef which is at issue. The PEP units are to be placed in seven to ten feet of water. The PEP reef is designed to reduce wave heights, particularly during a storm event, which should reduce the wave energy and currents in the lee of the structure. While it is hoped the units will deter erosion, they may also cause some accretion to the beach. Whether such accretion would be temporary or long- term is uncertain. As a result of studies performed by the University of Florida under the direction of Dr. Dean, and supported by the County's coastal engineer Mr. Donaldson, it was determined that the PEP units should be installed in shorter lengths (than originally designed) with gaps between each segment. Consequently, the installation proposed by the County is not continuous but is staggered and gapped. The installation proposed by the County is unique in that the coastal characteristics of the area and the proposed design should produce results different from past installations of reef structures in Palm Beach County, Florida. As a result, studies performed by Dr. Dean in connection with a reef installed in Palm Beach County have been discounted as dissimilar to the one proposed in this case. In reviewing the subject permit application, the Department requested additional data which the County retained Dr. Zarillo to gather. Dr. Zarillo performed numerical modeling for the proposed reef system. Based upon Dr. Zarillo's work it is expected that the PEP reef system will have a positive benefit in that wave height and energy is likely to be reduced by the installation of the units. The site for the installation is suited for the proposal and is not within an area that is considered environmentally sensitive. Moreover, the PEP reef itself will add to the development of species since it should develop into a nursery habitat for young fish and other marine organisms. The installation of PEP reefs at other locations have proven to be both successful and unsuccessful. Having considered the studies performed by Dr. Bruno, an expert in coastal engineering and in measuring/modeling coastal processes, it is likely that the proposed project will be similar enough in design to installations reviewed by Dr. Bruno to allow the proposed project to be compared. Dr. Bruno has monitored three installations at three different sites in New Jersey. Each site had different results based upon conditions of each location. One site, expected to be most like the proposed site in Vero Beach, has experienced a reduced rate of erosion. Based upon Dr. Bruno's "real life" experience it is expected that the proposed installation will result in a reduction of wave height on the order of 10 percent to 20 percent. Consequently, the proposed installation should provide a benefit to the control of erosion. The reduction of wave height leads to a reduction in the erosive power of the wave field. Therefore, it is expected to result in a reduced erosion rate behind the PEP reefs. Additionally, Dr. Bruno's assessment of Dr. Zarillo's modeling work suggests that "in theory" the proposed site should experience a reduction in wave height as a result of the proposed installation. As a result, both scientific methods support the proposed project. No scientific study can, however, assure the success of this project. In fact, success may be derived from the value of the data which will be gathered during the monitoring period. Such data may assist in the future design of structures to reduce wave energy. The County's proposed monitoring plan contains detailed and adequate performance criteria to assure that the PEP reef system will be fully evaluated. The County has provided adequate assurance that it will comply with the permit conditions, including the modification or removal of the reef system if directed by the Department. All installation and monitoring as well as removal is to be performed at the County's expense. The PEP reef system will have no appreciable adverse impact on marine turtles. Construction is prohibited during nesting season under the terms of the permit. The PEP reef system will have no adverse impact on swimmers or boaters. The units are to be clearly marked and identified under the terms of the permit. No adverse impacts to Petitioners Walther and Clemens should be incurred as a result of the installation of the proposed project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection enter a final order approving the permit requested by the County. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4045 Rulings on the proposed findings of fact submitted by the Petitioner Walther: 1. Paragraphs 1, 3, 4, 6, 7, 8, 9, 10, 12, 13, 16, 17, 26, 29, 42, 44, 47, 50, 51, 59, and 60 are accepted. With regard to paragraph 2, the allegation is hearsay as it relates to the record cited; however, although not stipulated, the record most likely supports the paragraph in substance. Paragraph 5 is rejected as irrelevant. There is no evidence to support the factual conclusion that because another permit holder has failed to remove a reef that the County will similarly default on its obligation to do should the agency order the PEP reef removal. Paragraph 11 is rejected as irrelevant. Paragraph 14 is rejected as irrelevant if it purports to suggest the contracting was improper; this proceeding does not consider the propriety of the contracting process. With the deletion of any emphasis and the last sentence which are rejected as argument, paragraph 15 is accepted. Paragraphs 18 through 24 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 25 is rejected as hearsay; it is accepted that Mrs. Clemens opposed the permit and requested a hearing. Paragraph 27 is rejected as an incomplete statement and therefore not supported by the total weight of credible evidence. Paragraph 28 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 30 through 33 are rejected as law not statements of fact. Paragraph 34 is accepted in general terms but not as to the specific measurements cited. Paragraphs 35 through 38 are rejected as contrary to the weight of all credible evidence. It is determined that the site is suitable for a non-biased, comprehensive analysis of the project. Paragraphs 39 through 41 are rejected as contrary to the weight of all credible evidence. Paragraph 43 is rejected as irrelevant. With regard to paragraph 45, it is accepted the reefs may settle but such is expected to be unlikely to impair the overall performance of the structure; therefore, the paragraph, as drafted, must be rejected as contrary to the weight of all credible evidence. Paragraph 46 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 48 is rejected as argument or contrary to the weight of all credible evidence. Paragraph 49 is rejected as unclear or incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as incomplete to stand as a finding of fact or contrary to the weight of all credible evidence. Paragraphs 54 through 58 are rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 61, it is accepted that Dr. Dean envisioned a current being created that would run parallel to the shoreline as a result of the reef installation but otherwise rejected as irrelevant or contrary to the weight of all credible evidence. With regard to paragraph 62, such statement is generally true; however, Dr. Dean did not conduct any sediment transportation test to verify that the structure in an open setting (as opposed to the experimental tank) would transport sediment as inferred. Paragraphs 63 through 67 are rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 68 is accepted as accurate but the agency did not express, and the record does not establish, that there is a concern that the County may not honor its agreement to remove the PEP reef if directed to do so. Paragraph 69 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Petitioner Clemens: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent Department: All proposed findings of fact adopted by the Department as listed are accepted. See comments below as to rulings on the proposed findings of fact submitted by the County. Rulings on the proposed findings of fact submitted by the Respondent County: 1. Paragraphs 1 through 5, 7 through 15, 17, 20, 21, 23, 24, 26, 27 through 30, 34, 40, 41, 42, 43, 45, and 46 are accepted. With regard to paragraph 6, it is accepted that an extensive renourishment program might damage the sensitive nearshore hardbottom community; otherwise rejected as irrelevant. With regard to paragraph 16, with the deletion of the word "significantly" in the second sentence and the last sentence which are rejected as irrelevant, editorial comment, argument or not supported by the total weight of credible evidence, it is accepted. With regard to paragraph 18, the first sentence is accepted. As to the balance of the paragraph, with the deletion of the word "significantly" and the substitution of "might" for "could", the paragraph is accepted. Otherwise rejected as an inaccurate characterization of the weight of the record. With regard to paragraph 19, the first sentence is accepted. The remainder of the paragraph is rejected as irrelevant. Paragraph 22 is rejected as a compound statement of proposed fact some of which are accurate but which taken in whole constitute argument, unnecessary, irrelevant or not supported by the weight of the credible evidence. Paragraph 25 is rejected as unnecessary or irrelevant. With regard to paragraph 31, with the deletion of the word "significant" in sentence three, the paragraph is accepted. With regard to paragraph 32, with the deletion of the word "significant" in sentence two, the paragraph is accepted. Paragraph 33 is rejected as repetitive, unnecessary or irrelevant. With regard to paragraph 35, the first sentence is accepted. The remainder of the paragraph is rejected as unnecessary, comment, argument, or irrelevant. Paragraphs 36 through 38 are rejected as unnecessary, comment, argument, or irrelevant. The proposed PEP reef should not adversely impact the Vero Beach shoreline. Paragraph 44 is rejected as unnecessary, comment, argument, or irrelevant. With regard to paragraphs 47 through 53, it is accepted that the Petitioners did not establish that they will be substantially affected by the proposed project; however, their conduct does not rise to the level to establish participation in the administrative process was for an improper purpose. Consequently, the paragraphs are rejected as argument, irrelevant or contrary to the weight of the credible evidence. COPIES FURNISHED: Steve Lewis, Esquire John W. Forehand, Esquire LEWIS, LONGMAN & WALKER, P.A. 215 S. Monroe Street, Suite 702 Post Office Box 10788 Tallahassee, Florida 32302 Kevin S. Hennessy, Esquire LEWIS, LONGMAN & WALKER, P.A. 2000 Palm Beach Lakes Boulevard Suite 900 West Palm Beach, Florida 33409 Michael P. Walther 1725 36th Avenue Vero Beach, Florida 32960 Adele Clemens 3747 Ocean Drive Vero Beach, Florida 32963 Thomas I. Mayton, Jr. Dana M. Wiehle Assistants General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherall Secretary Department of Environmental Regulation Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Department of Environmental Regulation 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway. The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein. The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978. During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto). The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years. It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were: off the beach north of the north jetty; just south of the weir to which the north jetty is attached; and the beach area approximately one mile south of the inlet. For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet. In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure. Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards. The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge. It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount. Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein. $2,000 REWARD To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate $1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms. $1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide. John C. Gross PO Box 596 New Smyrna Beach, Fl 32069 Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming. Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned, the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property. It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature. Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations. Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area. In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below. Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless. It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property. The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted. Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt. Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that: Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed. Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area. However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months. In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore. Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived. Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast. This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging. Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics. As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
The Issue The issue is whether the Department of Environmental Regulation (DER) should modify permit number 599070329, issued to the City of Boca Raton (City), to allow construction of an approved beach restoration project to commence on May 1, 1988, rather than on June 1, 1988.
Findings Of Fact On November 21, 1986, DER issued number 500970329 to the City for a beach restoration project. Issuance of the permit followed resolution of a dispute between DER and the City of Boca Raton which was the subject of an earlier proceeding before this hearing officer. See, City of Boca Raton, et al., v. Florida Department of Environmental Regulation, et al., DOAH Case number 86-0991 (Final Order of Dismissal rendered November 21, 1986). Although the City maintained in this case that the Coral Reef Society and Sierra Club, who are petitioners here, were intervenors in that prior proceeding through an umbrella organization, Save and Protect our Aquatic Resources and Environment (SPARE), no evidence was adduced supporting that contention. In the 1986 proceeding SPARE alleged that it was "a coalition of various environmental and commercial groups with a common interest in the protection of Florida's unique and fragile aquatic resources" (Amended Petition for Leave to Intervene in Case 86-0991, filed September 2, 1986). The groups which made up the coalition were not identified in that prior proceeding or in this one. SPARE filed a voluntary dismissal in the prior proceeding after learning that DER had decided to support issuance of a permit to the City of Boca Raton. After further administrative proceedings at the federal level, the U.S. Army Corps of Engineers issued a permit to the City of Boca Raton for the beach restoration project on or about January 28, 1988. The project, as currently permitted, involves the placement of approximately 980,000 cubic yards of sand, dredged from offshore, onto 1.45 miles of the City of Boca Raton's beachfront. The project will be constructed within and adjacent to two city Spanish River Park and Red Reef Park, and the waters of the Atlantic Ocean. The mean grain size of the dredged sand to be added to the beach is .32 millimeters. The dredged material is 99.6 percent sand and .4 percent silt or clay. The sand to be pumped onto the beach has characteristics almost identical to the current beach sand. As part of the approval process, the City of Boca Raton received a variance from turbidity standards otherwise applicable to Florida Class 3 waters. Turbidity is, to some extent, an unavoidable by-product of beach renourishment dredging. DER approved a mixing zone of 10,000 feet by 1,000 feet in which state water quality standards for turbidity could be violated during the construction period. The City of Boca Raton has also constructed artificial reefs comprised of natural limestone boulders and a protective groin approximately one-half mile south of the project area. Specific Condition Number Three (3) of the DER permit restricts project construction to the months of June, July, and August. In a letter dated February 12, 1988, the United States Fish & Wildlife Service (the Service) requested that the City of Boca Raton seek a modification of its DER permit to allow construction of the project to begin on May 1, 1988. The Service maintained the modification was important to avoid conflict with the peak nesting season of sea turtles, which are protected species. The Service did not make its request to the City to advance the project start date until February 12, 1988, because the Service was under the impression that the City had already requested permission from DER to commence construction sooner. In May of 1987, the City of Boca Raton had requested that the three month construction restriction of Specific Condition Number Three be deleted completely from the permit. When this request was made, the City of Boca Raton had hoped to begin construction of the project in the fall of 1987, and avoid construction during the sea turtle nesting season. DER's hydrographic engineer, Dr. Kenneth Echternacht, opposed this initial request to delete the construction limitation period. Due to delays in the federal permitting process and other logistical problems, the City of Boca Raton withdrew this earlier modification request. In order to meet the concerns of the Service, the City of Boca Raton applied by letter to DER dated February 22, 1988 for the suggested permit modification. Upon review of additional climatological and wave height data and littoral drift calculations from Dr. Robert Dean of the Costal and Oceanographic Engineering Department of the University of Florida College of Engineering, Dr. Echternacht supported a permit modification which would allow the construction period to begin in March, 1988. DER indicated its intention to grant the modification on March 10, 1988, acknowledging the concern of the Service and finding "the proposed modification is not expected to result in any adverse environmental impact or water quality degradation. " American Littoral Society, South Florida Chapter, and the Sierra Club, Florida Chapter, jointly, and the Coral Reef Society, independently, filed virtually identical petitions on March 22, 1988, objecting to DER's proposed approval of the modification request, and each requested a formal administrative proceeding. Those petitions not only questioned the permit modification, but also sought to reopen the issue whether the beach restoration project should be undertaken at all. During a telephone conference hearing on the City of Boca Raton's motion to strike portions of the petitions, held on April 8, 1988, the issue in this proceeding was narrowed to whether DER's proposed approval of the modification, expanding the construction "window" by one month, was proper. The time for objecting to the entire project has passed and the permit modification proceeding cannot be used to reopen the issue whether the beach renourishment now permitted for June, July, and August may go forward. The purpose of the restriction of construction to June, July, and August in Specific Condition Number Three of the permit was to confine construction to the months of minimum wave height. In southeast Florida, the summer months are climatologically the months of minimum average wave height. The amount of sand transported by the coastal littoral system, and consequently, the amount of optical turbidity due to suspension of particulate matter in the water column such as fine sand, is a function of wave height and longshore currents. The lesser the wave height and calmer the sea, the less sand is resuspended and the lower are the turbidity levels. During the months of June, July, and August, the waves propagate from the southeast and the corresponding longshore littoral direction is predominantly to the north. The remainder of the year, the littoral drift is primarily to the south. DER determined that project construction during the period of predominantly northerly littoral transport would better protect Red Reef Rock, a large rock outcropping located to the south of the project area. The Red Reef Rock area supports rich and diverse fish resources as fish are attracted to the rock for feeding and take advantage of the relief the rock outcroppings provide. The City of Boca Raton agreed to construct a groin composed of limestone boulders in order to afford additional protection to Red Reef Rock against the drift of sand to the south. The City is also limited by Specific Condition Number Ten of the permit, which remains in effect, and restricts disposal of material in the southernmost .15 mile portion of the beach to times when the prevailing longshore current is from south to north. Nonetheless, construction during May increases the possibility that some material suspended in the water column as the result of the renourishment will be transported over the Red Reef Rock area. Although project construction during the months of June, July, and August presents the optimum conditions from a water quality perspective, construction during that period conflicts with the height of the sea turtle nesting season. The City of Boca Raton has been monitoring sea turtle nesting activity on the Boca Raton public beaches from Spanish River Boulevard to Palmetto Park Road, a distance of 2.6 miles which encompasses the project area, for the past 11 years. Three species of sea turtles, logger head, green and leatherback turtles have been known to nest on the beaches of Boca Raton within and adjacent to the project area. All three species are protected under state and federal law. Loggerhead sea turtles, by far the most numerous nesters on Boca Raton's beaches, are classified as a threatened species by the U.S. Department of Commerce. Green sea turtles and leatherback sea turtles are classified as endangered species. Compared to the number of nests historically established by loggerhead turtles, green sea turtles are infrequent nesters on Boca Raton's beaches. Leatherback turtles are very rare nesters in this area. Southeast Florida is not a significant nesting habitat for leatherbacks. During the eleven-year monitoring period an average of only 2.4 leatherback sea turtles nested on the beach each year, the largest number nesting in a single year was 7; an average of 8 to 9 green sea turtle nests have been recorded annually in this area. By way of comparison, during the same period an average of 333 loggerhead sea turtle nested in this area. Sea turtle nesting in Boca Raton has historically occurred from April through September. The earliest nest of the year recorded by the City of Boca Raton occurred on April 2, 1987, and was a leatherback. The latest nest of the year occurred on September 13, 1983, and was a loggerhead. Leatherbacks nest early, and green turtles are late to nest. Loggerhead nests commonly begin in May, with the peak nesting period occurring in late June and early July. In light of the facts set out above concerning the likely timing of sea turtle nesting, which also being cognizant of DER's water quality concerns, the Service requested the City of Boca Raton to seek a modification of its DER permit to allow construction to begin on May 1, 1988. This would enable the City of Boca Raton to avoid construction during the peak of the sea turtle nesting season in late June, July, and August. The construction should take about 30 days. In addition to the permit modification request, the Service has recommended several other "reasonable and prudent measures" to avoid possible adverse effects to sea turtle nesting activity during the renourishment of the beach. These include a) tilling the beach to soften the new sand if it becomes compacted over a certain degree, b) relocation of nests is undertaken only by trained persons, c) lighting on the dredge is minimized to reduce any confusion it could cause to turtles attempting to locate the beach for nesting, and d) the addition of dune plants to the project area. The City of Boca Raton has agreed to implement these measures. The Boca Raton beach restoration project will enhance sea turtle nesting activity in the future. Currently, the beach in the project area is critically eroded, posing an immediate threat to successful sea turtle nesting. Nests are at risk of being inundated by sea water or washed away if not found and relocated by City of Boca Raton staff. The project will provide a long-term benefit to sea turtles by providing a wider dry beach area for safer nesting and better nest site selection. The City proved that wave heights, littoral drift, and other climatological conditions in southeast Florida do not vary dramatically, on the average, between the months of May and June. May is a transitional month, and there is net littoral movement south due to cold fronts and northeast winds in the area, along with swells caused by storms out in the Atlantic Ocean. While there is a potential for isolated events in May which could have an adverse impact on Red Reef Rock by causing a shift of newly dredged material south over the reef, the evidence presented by petitioners did not persuade the hearing officer that the risk of such events was unacceptably large when balanced against the value of advancing the construction into May to minimize conflict with the peak nesting season of loggerhead sea turtles. The petitioners' evidence did not quantify the likelihood of storm-related events with enough energy to adversely affect the Red Reef Rock area. The hearing officer is, therefore, more persuaded by Dr. Echternacht's testimony that long-term (i.e., average) data is more useful when assessing safety margins, and the available data gives reasonable assurance that renourishment may take place in May. Consequently, construction commencing during the month of May would not present any adverse water quality or marine resource effects. Petitioners have not persuaded the hearing officer that the subject permit modification would adversely affect water quality to such an extent as to be contrary to the public interest. The City has obtained a permit for a mixing zone which will accommodate all the turbidity which is likely to be caused by the beach renourishment. There is insufficient evidence that climatological event in May are likely to cause the turbidity to extend beyond the approved mixing zone.
Recommendation It is recommended that the Department of Environmental Regulation enter a final order granting the permit modification. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of May, 1988. WILLIAM R. DORSEY, JR. 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 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1590 The following are my rulings on the proposed findings of fact submitted by the petitioners pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Petitioners' Proposed Findings of Fact Covered in finding of fact 2. Covered in finding of fact 5. 3-4. Covered in finding of fact 6. 5. Covered in finding of fact 7. 6-7. Covered in finding of fact 8. Rejected because while wave heights are higher in May, there is insufficient evidence that higher wave height would cause turbidity in violation of the mixing zone which has been permitted. Covered in finding of fact 8. 10-11. Rejected as unnecessary. 12-15. Covered in finding of fact 8. 16. To the extent appropriate, covered in finding of fact 9. 17-20. Covered in finding of fact 9. 21-22. Covered in finding of fact 10. 23-24. Rejected because the Hearing Officer accepts the testimony of Mr. Possardt that southeast Florida is not a significant nesting habitat for leatherbacks, and therefore rejects the argument that leatherbacks are entitled to greatest protection. The Boca Raton Beach is a significant habitat for loggerhead turtles, and it is more appropriate to assess the impact of the project based on the predominate species of turtles nesting on the beach, rather than the impact of the project on a species which only rarely nest on this beach and has predominate nesting areas elsewhere. Rulings on Respondent DER's Proposed Findings of Fact Covered in finding of fact 2 and 4. Covered in finding of fact 3. Rejected because the evidence adduced at the hearing did not support findings concerning three systems of hard bottom and rock outcroppings. 4-6. Covered in finding of fact 8. Covered in finding of fact 8 and 13. Covered in finding of fact 14. Rejected as cumulative. Rejected for lack of evidence. Covered in finding of fact 13 and 14. Covered in finding of fact 10-12 Covered in finding of fact 10-12. 14-20. Rejected as unnecessary because the only evidence submitted pertain to potential violations of water quality standards or adverse affect on habitat of endangered species. Rulings of Respondent Boca Raton's Findings of Fact 1. Covered in finding of fact 1. 2. Covered in finding of fact 2. 3. Covered in finding of fact 5 and 6. 4. Covered in finding of fact 7. 5. Covered in finding of fact 8. 6. Covered in finding of fact 9. 7. Covered in finding of fact 10. 8. Covered in finding of fact 11 and 12. 9. Covered in finding of fact 8. Covered in finding of fact 13. Rejected as argument. COPIES FURNISHED: Alexander Stone Judy Schrafft, President South Florida Director Coral Reef Society American Littoral Society 357 North Lake Way 75 Virginia Beach Drive Palm Beach, Florida 33480 Key Biscayne, Florida 33149 Alfred Malefatto, Esquire Karen Brodeen, Esquire David C. Ashburn, Esquire Department of Environmental Post Office Box 24615 Regulation West Palm Beach, Florida 33416 Twin Towers Office Building 2600 Blair Stone Road Alan J. Kan, Esquire Tallahassee, Florida 32399-2400 Penthouse Suite 11088 Biscayne Boulevard Jonathan Shepard, Esquire Miami, Florida 33181 5355 Town Center Road Suite 801 Dale Twachtmann, Secretary Boca Raton, Florida 33486 Department of Environmental Regulation Daniel H. Thompson, Esquire 2600 Blair Stone Road General Counsel Tallahassee, Florida 32399-2400 Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Respondent, Department of Community Affairs, is the state land planning agency charged with the responsibility of administering the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. The Department has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern pursuant to Sections 380.031(18), 380.032, and 380.07, Florida Statutes. At all times pertinent to this proceeding and to DOAH Case Number 93- 7165DRI, Petitioner, Fred Snowman, owned the real property known as Lot 75, Matecumbe Ocean Beach subdivision, Lower Matecumbe Key, in Monroe County, Florida (the subject property). A building permit issued by Monroe County, described below, for this property was the subject of DOAH Case Number 93- 7165DRI (the underlying proceeding.) The lot is approximately 100 feet wide and, at different points, between 200 and 225 feet deep. The subject property is bounded on the landward side by U.S. 1 and fronts the Atlantic Ocean in an area known as Matecumbe Beach. Matecumbe Beach is a known resting and nesting habitat for marine turtles. This building permit constituted a development order on property within the Florida Keys Area of Critical State Concern. On September 30, 1993, Monroe County issued to Mr. Snowman, as the owner and general contractor, building permit number 9330008850, which authorized the construction on the subject property of a single-family residence containing 2,472 square feet of heated and cooled area, 1,568 square feet of porches, 1,435 square feet of storage enclosure below base flood elevation, and a swimming pool. The authorized construction was to be consistent with the building site plan, which was also approved by Monroe County. On November 18, 1993, the Department timely appealed the subject building permit to the Florida Land and Water Adjudicatory Commission (FLWAC) pursuant to Section 380.07, Florida Statutes. FLWAC referred the matter to the Division of Administrative Hearings where it was assigned DOAH Case Number 93- 7165DRI. A formal hearing was conducted in DOAH Case Number 93-7165DRI in Key West, Florida, on June 30, 1994. Following the formal hearing, the parties were afforded the opportunity to file post-hearing submittals. Thereafter, a recommended order was entered which recommended that FLWAC enter a final order that dismisses the Department's appeal. After the entry of the recommended order, the Department voluntarily dismissed its appeal. FLWAC subsequently entered a final order of dismissal. Petitioner, Fred Snowman, was the prevailing party in DOAH Case Number 93-7165DRI. SMALL BUSINESS PARTY The issue as to whether Petitioner is a "small business party" as defined by Section 57.111(3)(d), Florida Statutes, was disputed by the Department in this proceeding. The parties stipulated that Mr. Snowman meets the remaining criteria contained in Section 57.111, Florida Statutes, for an award of attorney's fees and costs. The following testimony elicited by Petitioner's counsel of the Petitioner was the sole evidence pertaining to the number of employees of the Petitioner: Could you tell us a little bit about your business? What's the nature of your business? Primarily I'm a speculation - spec builder and general contractor in the Florida Keys, and have been since 1973. Q. How many employees do you maintain on a regular basis? A. I mainly have subcontractors. Occasionally when I have a job, I hire for that particular job. But I'm the sole proprietor and I'm the employee. (Transcript, page 9, lines 12-22.) While the foregoing testimony establishes that as of May 15, 1995, Petitioner was the sole proprietor and sole employee of his business, it does not establish that Petitioner had fewer than 25 employees in 1993 when the Department initiated its actions against him. 1/ The following testimony elicited by Petitioner's counsel of the Petitioner pertains to his net worth: Q. What is your net worth? Let me ask you this. Does your net worth exceed a million dollars? A. No. Q. Less than a million dollars? A. Yes. (Transcript, page 9, line 23 through page 10, line 3) The following testimony elicited by Respondent's counsel of the Petitioner on cross examination also pertains to his net worth: Q. When you're identifying your net worth, what exactly are you considering? A. Well, net worth is all my assets minus my liabilities. Q. All of your personal assets? A. Which are far and few between (sic) today. Q. Do you have business assets? A. No. Q. Do you own any property? A. Lot 75. Q. Any property other than Lot 75? A. I own three lots, small lots in Plantation Key. Q. Are they developed or undeveloped? A. No, they're undeveloped. Q. Do you know how much they're worth? A. They're valued at fifteen thousand per lot. Q. They're not on the water? A. Not on the water. Q. Lot 75, do you know what that property's worth? A. That property is worth about a hundred and seventy-five thousand. Q. Without the house on it? A. Without the improvements, yes. Q. How about in its improved condition? A. I would say, in the improved condition, with this home, it would be about five hundred thousand. Q. Okay. Other than the real estate, do you have any personal or business investments, stocks or -- A. No. Q. No? A. Just my condo. (Transcript, page 10, line 8 through page 11, line 13.) There was no other evidence presented as to Petitioner's net worth. While the foregoing testimony establishes that as of May 15, 1995, Petitioner had a net worth of less than two million dollars, it does not establish that his net worth was below that figure in 1993 when the Department initiated its actions against him. SUBSTANTIAL JUSTIFICATION The Department's appeal initially raised several issues. All issues in the underlying proceeding but one were voluntarily dismissed by the Department either prior to the hearing or at the hearing. The only issue litigated at the formal hearing in DOAH Case Number 93-7165DRI was the appropriate setback from the portion of the beach-berm complex located on the subject property known to serve as an active nesting or resting area of marine turtles. Pertinent to this proceeding, Section 9.5-345(3)(f), Monroe County Code, provides: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; There was no dispute in Case 93-7165DRI that the turtle nesting setback applied to Mr. Snowman's property. The dispute was how to apply the setback. There was a bona fide factual dispute as to the extent of the beach berm complex on the subject property that should be considered to be "beach berm complex which is known to serve as an active nesting or resting area of marine turtles" within the meaning of the setback ordinance. The Department established that it followed its standard procedures in deciding to appeal the subject development order. The Department maintains a field staff in the Florida Keys that routinely reviews development orders issued by Monroe County for consistency with the land development regulations, the Monroe County comprehensive plan, and Chapters 163 and 380, Florida Statutes. The permit package typically reviewed, and reviewed in this case, includes the permit, a permit conditions sheet, surveys, and site plans. The Department staff usually reviews a biological survey or habitat evaluation index, reviews the County's entire file, reviews aerial photographs and conducts a field assessment. In this case, the Department also looked at records of the Department of Natural Resources and of the Save A Turtle volunteer environmental group. In this case, the Department conducted a field assessment of Mr. Snowman's lot and measured the point it considered to be the landward extent of the turtle nesting setback line. Kate Edgerton, an experienced biologist employed by the Department, measured the point the Department asserted was the landward extent of the turtle nesting setback line. Ms. Edgerton made a good faith assessment of the beach berm complex and considered the property to contain one beach berm complex. (Transcript, DOAH Case 93-7165DRI, page 166, line 17.) Ms. Edgerton testified in the underlying proceeding that she considered herself bound by the definitions in the Monroe County land use regulations and that she believed herself to be applying the pertinent definition when she measured the setback line. (Transcript, DOAH Case 93- 7165DRI, page 163, lines 20-23.) Following field staff review, a report is prepared and forwarded to Tallahassee for review by additonal staff, including the Department's administrator of the critical state concern program. Department staff in Tallahassee review the field staff report and participate in formulating a recommendation as to whether to appeal the permit. The appeal decision is then made either by the Department Division Director or by the agency head. Each material step in the Department's customary practice of reviewing permits was followed in reviewing the subject permit. Section 9.5-4(B-3), Monroe County Code, contains the following definition of the term "beach berm" that was found to be pertinent to the underlying proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. The term "berm" is identified in the Monroe County comprehensive plan as . . . a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. A berm is higher in elevation than both the beach and the area landward of the berm. At the formal hearing in the underlying appeal, there was conflicting evidence as to the extent of the beach berm complex on the subject property. The Recommended Order found that there were two distinct ridges located on the subject property. The issue of whether both ridges could be considered part of the "beach berm complex" was one of first impression. Succinctly stated, it was the position of the Department in the underlying appeal that both ridges were in an area of potential habitat on a beach that is known habitat and it asserted the position that both ridges should be considered to be one beach berm complex. The Department asserted the position that the setback should be measured from the landward extent of the second ridge (the more landward of the two ridges). Monroe County had measured the setback from the landward extent of the first ridge. Mr. Snowman agreed with the County's determination of the setback. Mr. Snowman presented evidence that the County had, for several years, applied the setback from the landward extent of the first ridge and argued that, based on the foregoing definitions each ridge should be considered to be a separate beach berm, but that only the first should be considered to be a beach berm. The Department presented evidence that the County had applied the setback provision in an inconsistent manner by measuring from the crest of berms in some cases and measuring from the landward extent of berms in other occasions. The Recommended Order rejected the Department's position and concluded that the definition of "beach berm" contained in Section 9.5-4(B-3), Monroe County Code, and the description of "berm" in the comprehensive plan were unambiguous. Although the Department argued that other provisions of the code and comprehensive plan supported their construction of the setback requirement, it was concluded that the issues should be resolved based on the unambiguous definition of "beach berm". It was also concluded that no deference should be afforded the Department's construction of the term "beach berm" because there is a plain and unambiguous definition of the term that is a part of the Monroe County Code. It was observed that "[w]hile a greater setback may better serve the goals of the comprehensive plan, as argued by the Department, the imposition of a greater setback requirement should come from a change in the Monroe County Code." This observation was made because the Department had found support for its interpretation of the setback requirement from other parts of the code and comprehensive plan. This case involved bona fide disputed issues of material fact and legal issues that were of first impression. It is found that those issues, although resolved against the Department following the formal hearing, were of sufficient merit to substantially justified the Department's actions in initiating the underlying appeal.
The Issue The issues are whether Respondent committed the violations alleged in Petitioner’s Second Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, the stipulated facts, and matters subject to official recognition, the following Findings of Fact are made: The Parties and the Events of August 24, 2019 The Department is the state agency charged with encouraging the development of aquaculture3 in Florida. § 597.003(1), Fla. Stat. “When any qualified person desires to lease a part of the bottom, water column, or bed of any [state waters] for the purpose of growing oysters or clams . . . , he or she shall present to [the Department] a written application ” § 597.010(1), Fla. Stat. Mr. Lee and his father, Robert J. Lee, jointly hold Aquaculture Certificate of Registration No. AQ1529074. On January 5, 2016, they applied to the Department for a state owned submerged land aquaculture lease in the 2 Petitioner’s Exhibit G is a flash drive containing video footage of Officer Travis’s traffic stop and subsequent arrest of Mr. Lee. 3 Section 597.0015(1), defines “aquaculture” as “the cultivation of aquatic organisms.” Section 597.0015(3), defines “aquaculture products” as “aquatic organisms and any product derived from aquatic organisms that are owned and propagated, grown, or produced under controlled conditions.” vicinity of Alligator Harbor in Franklin County, Florida. The lease was to be used for the commercial cultivation of oysters and clams. The Department issued a ten-year lease, Sovereignty Submerged Land Aquaculture Lease No. 19-AQ-1465, to Mr. Lee and his father on February 3, 2016. One provision therein required the lessee to be bound by the current and future versions of the Florida Statutes and the Florida Administrative Code. Another provision stated that a violation of chapter 597 and/or chapter 5L-1 “may be cause for this lease to be terminated without further notice to the lessee and shall result in the forfeiture to lessor of the works, improvements, and shellfish in and upon the leased premises.” On June 15, 2017, Mr. Lee pled nolo contendere to several charges filed in Franklin County, Florida. Two of the aforementioned charges pertained to the criminal offenses of possessing untagged and undersized oysters, and Mr. Lee was adjudicated guilty of all charges. At approximately 3:00 a.m., on August 24, 2019, Officer David Travis of the Florida Fish and Wildlife Conservation Commission was on patrol in Carrabelle, Florida, and traveling west on US-98, 25 miles from Alligator Harbor. He observed a Chevrolet Tahoe pulling a boat4 that had no trailer lights. A Ford Fusion was closely following the Tahoe. Officer Travis then made a U-turn in order to initiate a traffic stop based on the lack of trailer lights and the failure of both vehicles to use their blinkers prior to making two turns. Mr. Lee was driving the Fusion, and a friend of Mr. Lee’s was driving the Tahoe. Upon inspecting the boat, Officer Travis saw four untagged baskets, one blue and three orange. The blue basket was completely full with at least 40 4 The boat was registered to Mr. Lee’s father. pounds of unculled5 oysters. The orange baskets were approximately the same size as the blue basket, and two of the orange baskets were at least 75 percent full with unculled oysters. The third orange basket contained 15 to 20 culled oysters. The boat and the contents therein were wet. Officer Travis found multiple pairs of wet gloves and one pair of wet socks inside a yellow oyster sack at the boat’s stern. At the bow, he found several casting nets that were soaking wet and containing fresh grass, mud, sand, and live crustaceans. Officer Travis also found a mullet in a cooler that appeared to have been recently caught. During an inspection of the Tahoe, Officer Travis found a large, white cooler with a large quantity of culled oysters in a bed of ice. According to Mr. Lee, those oysters were harvested from his Alligator Harbor lease on August 22, 2019, and were intended for personal consumption. Mr. Lee told Officer Travis during the traffic stop that he had taken the oysters described in paragraph 6 from his lease in Alligator Harbor on August 23, 2019, between 10:00 a.m. and 6:00 p.m. Mr. Lee further stated to Officer Travis that he had transported the oysters at issue to his girlfriend’s house in Carrabelle where he had begun to cull some of them. According to Mr. Lee, he and his girlfriend had gotten into an argument, and Mr. Lee decided to take the oysters to his father’s home in order to finish culling them. Mr. Lee and his friend were supposedly driving to Robert J. Lee’s home when Officer Travis pulled them over. Officer Travis arrested Mr. Lee and his friend. Ultimate Findings Count I of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-1.007(2) on approximately 5 Wild oysters commonly grow together in clumps. “Culling” refers to the process by which wild oysters are separated from each other. The term can also encompass the cleaning, grading, and sorting of oysters. August 23, 2019, by failing to label containers holding oysters. Neither Officer Travis’s arrest report nor his testimony mentioned any tags on the baskets in the boat or the cooler in the Tahoe. Also, no tags are visible during the footage from Officer Travis’s body camera. While Mr. Lee testified that he had a bulk tag that applied to all of the containers at issue, the undersigned does not find Mr. Lee’s testimony to be credible. Accordingly, the Department proved Count I by clear and convincing evidence. Count II of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee failed to timely deliver oysters to a certified processing facility on approximately August 23, 2019, as required by rule 5L- 1.008(7). The aforementioned rule requires that “shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service.” As noted above, Officer Travis observed that the contents inside the boat were wet and fresh, and that evidence convincingly undermines Mr. Lee’s assertion that the oysters at issue were harvested on August 23, 2019, prior to 6:00 p.m. While Mr. Lee asserted that the oysters in question were intended for personal consumption rather than for sale, that assertion is undermined by the large number of oysters Officer Travis observed in the boat during the August 24, 2019, traffic stop. Therefore, the Department proved Count II by clear and convincing evidence. Count III of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rule 5L-3.004 on approximately August 23, 2019, by attempting to transport oysters to a private residence for sorting and washing rather than performing those activities over his lease. As noted above, Officer Travis observed a large quantity of unculled oysters during the traffic stop. Those oysters had not been sorted and washed over Mr. Lee’s lease. Also, the allegation in Count III is consistent with what Mr. Lee told Officer Travis during the traffic stop. Accordingly, the Department proved Count III by clear and convincing evidence. Count IV of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee violated rules 5L-1.008(5)(a) and 5L- 3.007(8)(c) in December of 2018 by harvesting and replanting wild shellfish stock on the submerged lands of his lease. However, the Department presented no clear and convincing evidence that Mr. Lee violated rules 5L- 1.008(5)(a) and 5L-3.007(8)(c). Count V of the Department’s Second Amended Administrative Complaint alleges that Mr. Lee was convicted on June 15, 2017, of possessing untagged oysters in violation of section 597.0041(4). As noted above, Mr. Lee was adjudicated guilty on June 15, 2017, of possessing untagged and undersized oysters. The Department thus proved Count V by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department impose a cumulative fine of $4,000.00 ($1,000.00 each) for Counts I through III and V. The undersigned also recommends that Aquaculture Certificate of Registration No. AQ1529074, jointly held by Mr. Lee and his father, be revoked. Finally, the undersigned recommends that Sovereignty Submerged Land Aquaculture Lease No. 19- AQ-1465 be terminated with Mr. Lee forfeiting all works, improvements, and shellfish in and upon the lease premises.6 6 Mr. Lee argued that his father’s interest in the Certificate of Registration and the lease at Alligator Harbor should not be extinguished because his father had no involvement with Mr. Lee’s violations. However, Mr. Lee offered no authority to support his argument, and the undersigned’s independent research did not find anything to support Mr. Lee’s position. DONE AND ENTERED this 20th day of November, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2020. COPIES FURNISHED: Robert Kevin Lee Post Office Box 28 Carrabelle, Florida 32322 Darby G. Shaw, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Allan J. Charles, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399 (eServed) Stephen M. James, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 531 Tallahassee, Florida 32399 (eServed) Steven Hall, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 (eServed) Honorable Nicole “Nikki” Fried Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 (eServed)
The Issue Whether Respondents discriminated against Petitioner, Nisrine Smith, on the basis of her disability, in violation of the Florida Fair Housing Act (FHA), chapter 760, part II, Florida Statutes; and, if so, the appropriate penalty.
Findings Of Fact Respondent Ocean Towers is a residential condominium facility in Volusia County, Florida, with numerous condominium units. Respondent Sentry managed Ocean Towers during the time period relevant to the instant matter, but it no longer serves as the manager of Ocean Towers. Ms. Smith leased a furnished condominium unit from its owner and resided at Ocean Towers, beginning in January 2019. Ms. Smith paid monthly rent to the condominium unit’s owner, which also included all utility charges. Ms. Smith is a person with a nonvisible disability, which she described as post-traumatic stress disorder, depression, and anxiety, who requires the use of an emotional support animal (ESA).3 On September 8, 2019, Ms. Smith brought an approximately 14-week- old female Rottweiler puppy named Vida to live with her at Ocean Towers. At that time, the “Daytona Beach Ocean Towers Rules & Regulations” provided, in part, as follows: Respondents’ Proposed Recommended Order concedes certain dispositive facts, and also includes contradictory factual findings—both within the Proposed Recommended Order itself, as well as when compared to evidence presented—that the undersigned considered and discusses in this Recommended Order. 3 Both Petitioner’s Proposed Recommended Order, as well as Respondents’ Proposed Recommended Order (which, as discussed in footnote 2 above, is largely duplicative of Petitioner’s Proposed Recommended Order), assert—in identical fashion—that Ms. Smith has a disability and requires the use of an ESA. While the evidence at the final hearing was not entirely clear on this point (a point which resulted in FCHR finding no reasonable cause), Respondents, in their Proposed Recommended Order, concede this point. The undersigned has thus based this Finding of Fact on this stipulation. Confusingly, other “original” or “nonduplicated” portions of Respondents’ Proposed Recommended Order state that Ms. Smith never provided documentation to it that she had a disability, which required an ESA, but Respondents have clearly conceded this particular factual finding in their Proposed Recommended Order. PETS: Guests may not have pets in the building. All authorized small pets except certified service dogs must be carried while in public areas of the building and garage. Unless inside units, pets must be on a leash and owners are responsible for cleaning up after their pet while on [Daytona] Towers property. Ms. Smith had not informed Ocean Towers about Vida’s arrival prior to bringing her to Ocean Towers. On September 12, 2019, Maria Montgomery, who was the administrative assistant for Ocean Towers, emailed Ms. Smith concerning Vida. The email stated that “new pets are to be firstly reported to the office and rules apply as I am sure you are aware.” It further states that “Service animal or companion pets all need to have registered papers copied to the office[,]” and further states “[w]e do not need to know ‘why’ if it is a companion animal-we just need to have the authorization on file for Security, etc. in the event someone asks why an animal not in the ‘normal’ pet description of 20 pounds or less is living in the building ” Ms. Montgomery’s September 12, 2019, email to Ms. Smith was likely precipitated by Ocean Towers resident Ms. Honeycutt, who was also the condominium association president in 2019. Ms. Honeycutt—who has been paralyzed since birth and uses a wheelchair—testified that she encountered Ms. Smith and Vida on two occasions. On the first occasion, in an elevator, Ms. Honeycutt testified that Vida jumped on her lap. On the second occasion, in the condominium lobby, Ms. Honeycutt testified that Vida again jumped on her lap, but that she was able to move away from Vida. Mr. Zehrung, who was the manager at Ocean Towers in 2019 (and employed by Sentry), testified that he received numerous complaints from other tenants about an unleashed Rottweiler, and was aware of Ms. Honeycutt’s encounters with the dog as well. After determining that Ms. Smith was the owner of the dog, he informed her of the Ocean Towers “Rules and Regulations” concerning pets; he stated that Ms. Smith did not initially tell him that Vida was an ESA, but did so about one week after this conversation. In response to Ms. Montgomery’s email request, Ms. Smith provided Ocean Towers with a letter, dated September 17, 2019, from the “Medical & Psychiatric Clinic of Florida, Inc.,” from “Yessica Sanchez, Office Coordinator, ARNP.” That letter stated: Ms. Nisrine Smith is currently being treated at the Medical & Psychiatric Institute of Florida, Inc. Ms. Smith presently has her pet Rottweiler, also known as Vida, with her in her apartment. It would be beneficial for her to have her pet if the apartment complex allows her to keep it. The September 17, 2019, letter, which is not from a treating physician, makes no reference to whether Ms. Smith has a disability, and further makes no reference to her dog as an ESA, but rather refers to the dog as a “pet.” Ms. Smith testified that, after submitting the September 17, 2019, letter to Ocean Towers, she felt everything would be “okay,” and that she would be able to keep Vida as an ESA. However, she testified that she was “rudely treated” by other residents, including comments about the dog’s size, and the Ocean Towers rules that require a resident to carry their pet while in the lobby and indoor common areas. Ms. Smith felt that she was being discriminated against by Ocean Towers because of Vida’s dog breed, Rottweiler. Both Ms. Honeycutt and Mr. Zehrung testified that the September 17, 2019, letter that Ms. Smith submitted to Ocean Towers was not a sufficient request for an ESA. They both testified that had Ms. Smith submitted an appropriate “ESA letter” with “correct documentation,” Ocean Towers would have allowed Ms. Smith to keep Vida at Ocean Towers. Mr. Zehrung testified that there were three or four other tenants of Ocean Towers who had ESA’s, with “documentation.” On September 19, 2019, Ocean Towers, through its attorney, sent, via certified and regular mail, a letter to Ms. Smith and the owners of the condominium unit, that stated, in pertinent part: It is our understanding that your current tenant has a rottweiler within the unit. Said possession of the dog in the unit in common elements of the Association is a violation of the governing documents of the Association. * * * The Association received a letter from your tenant indicating that the rottweiler is an emotional support animal; however, regardless if it is an emotional support animal, the Association will not permit this animal to reside at the property because it is a dangerous breed on the Association’s insurance and only small animals are permitted. The dog is not a service animal, and therefore must be removed from the property by September 30, 2019. Furthermore, prior to the removal of the pet from the property, the owner must carry the pet when the pet is not within their unit, the dog must be on a leash, the dog may not be in the common elements of the Association and must only use the facilities that are designated for relieving pet waste. At no point is this dog allowed to be not on a leash or not hand-carried. In the event that the dog is not removed by September 30, 2019, the Association will file before the Department of Business and Professional Regulation a petition for injunctive relief seeking the permanent removal of the dog. In the event that this is necessary, the Association will be entitled to recover their reasonable attorney’s fees and cost. The September 19, 2019, letter from Ocean Towers to Ms. Smith directly contradicts the testimony of Ms. Honeycutt and Mr. Zehrung in two important ways: (a) it admits that Ms. Smith’s September 17, 2019, letter was a request for an ESA; and (b) it denies Ms. Smith’s request (“regardless if is an emotional support animal”), based on the dog’s breed, labeling it a “dangerous breed on the Association’s insurance[.]”4 The undersigned further notes that the September 19, 2019, letter from Ocean Towers makes no reference to any incident of Vida jumping on Ms. Honeycutt, or any other incident of alleged aggressive behavior of Vida. Although Ms. Honeycutt’s testimony that Vida jumped on her lap on two occasions is credited, Respondents failed to present any other credible evidence that Vida was an “aggressive animal,” or whether Vida posed any direct threat to the safety of the residents of Ocean Towers, as Respondents contend in their Proposed Recommended Order. Additionally, Respondents did not present any evidence that demonstrated that a rottweiler was forbidden under any insurance policy that covered the Respondents. Ms. Smith testified that she felt that Ocean Towers and its residents discriminated against and harassed her, and as a result, she decided to move out of her condominium unit the weekend of September 21 to 23, 2019. She testified that she received the September 19, 2019, letter during the weekend that she moved out. 4 The September 19, 2019, letter also contradicts numerous proposed findings of fact in Respondents’ Proposed Recommended Order which contest whether Ocean Towers ever received “proper documentation” of Ms. Smith’s request for an ESA. Respondents’ Proposed Recommended Order states that the September 19, 2019, letter, and a September 25, 2019, letter “were silent as to the need of an ESA and neither letter addressed that Smith suffered from a disability that would entitle Smith to have an ESA animal[,]” and, ultimately, that “Towers did not discriminate against Smith because Smith never provided documentation to the Association that she had a disability that required her to have an Emotional Support Animal.” Resp. Proposed Recommended Order at p. 5, ? H. The undersigned notes that the September 19, 2019, letter, which contradicts these proposed findings, was written by Ms. Kirian, who is counsel of record in this matter, and who authored the Proposed Recommended Order. Additionally, as stated in note 3 above, Respondents concede, in their Proposed Recommended Order (which is identical to Petitioner’s Proposed Recommended Order on this point), that Ms. Smith “is a person with a non-visible disability who requires the use of an Emotional Support Animal (ESA).” Resp. Proposed Recommended Order, p. 3, ? A. After moving out, on September 25, 2019, Ms. Smith provided another letter from the “Medical & Psychiatric Institute of Florida, Inc.,” from “Asad H. Kahn, M.D.,” to Ocean Towers, which stated: Attention: Current Housing Manager Ms. Nasrine [SIC] Smith is currently receiving treatment at our office for psychiatric condition. She has a pet dog. It would not be emotionally beneficial for her to lose her pets at this point. We do not have any opinion on risk of safety of the residential area due to the animal. The safety of the area needs to be assessed by the security of the housing project. Ms. Smith testified that after moving out, she was able to purchase a home. She contends that she incurred moving expenses when she vacated Ocean Towers, and that her current monthly mortgage payments, which do not include utilities, are more expensive than her previous rental payments at Ocean Towers. However, Ms. Smith did not present any persuasive evidence that quantified any damages she contends that she incurred as a result of Respondents’ discriminatory housing practices. The undersigned finds that Ms. Smith established, by a preponderance of the evidence, that Respondents discriminated against her based on her disability, by failing to provide a reasonable accommodation—an ESA—in violation of the FHA.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order granting Nisrine Smith’s Petition for Relief, in part, as follows: (a) finding that Respondents engaged in a discriminatory housing practice based on Ms. Smith’s disability, by failing to provide a reasonable accommodation to Ms. Smith in the form of an ESA; (b) ordering Respondents to prohibit the practice of denying reasonable accommodations to individuals and tenants who request a reasonable accommodation on the basis of their disability; and (c) ordering Respondents to pay for the reasonable attorney’s fees and costs incurred by Ms. Smith’s counsel in this proceeding. DONE AND ENTERED this 30th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk S ROBERT J. TELFER III Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2021. Nisrine Smith Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Joseph John St. Angelo, Esquire Community Legal Services of Mid-Florida 122 East Colonial Drive, Suite 200 Orlando, Florida 32801 Laura Qualatone Daytona Beach Ocean Towers, Inc 4188 South Atlantic Avenue New Smyrna Beach, Florida 32169 5143 Taylor Avenue Port Orange, Florida 32127 Marlene Kirtland Kirian, Esquire South Milhausen, P.A. Gateway Center 1000 Legion Place, Suite 1200 Orlando, Florida 32801 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact The parties stipulated and agreed to the operative facts in their Pre- Hearing Stipulation and those agreed-on facts are adopted herein as Findings of Fact 1-26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Respondent denied Petitioner's requested permit in this case because the status of his leases was currently in question for possible failure to maintain the allegedly required level of cultivation. Respondent applied the provisions of Rule 46-27.0092 F.A.C. (1988) to Petitioner's request for a permit, which rule in fact was not adopted until October 1, 1986, and the pertinent provisions of which did not exist in fact until the rule was amended on July 7, 1988. Rule 46-27.0092 F.A.C. (1988) cites as its specific authority four provisions of Florida statute which did not exist when Petitioner's oyster leases were acquired by contract with the State of Florida. Rule 46-27.0092 F.A.C. (1988) implements laws which did not exist at the time Petitioner acquired his contract interest in these leases. The Department denied Petitioner's request for a permit in reliance on Section 370.06(4), Fla. Stat. (1987), a statute which did not exist at the time Petitioner acquired his interest in these oyster leases by contract. A report by Dr. Charles Rockwood and others commissioned by the Department of Natural Resources of F.S.U. found that "The local contention that dredging [for oysters in Apalachicola Bay] would be ecologically harmful to the Apalachicola oyster population given the relatively soft and muddy bottom, it would cause excess siltation and the oysters would smother and die, is a conclusion not supported by ecological information available to the project researchers." The Marine Fisheries Commission 15 years later arrived at the same conclusion stated in #7. "We do not believe there would be any environmental problem associated with the use of dredges." In Louisiana dredges are allowed to a maximum of 7 Ft. and up to 6 per vessel. Ron Ducas from Louisiana, one of the top shellfish biologist in the southeast, said that the use of dredges does not cause any environmental damage or [un]necessary [sic] damage to the oyster. The findings noted in #7, 8 and 9 were submitted by Mr. Nelson of the DNR and on behalf of Respondent to the governor and cabinet during the Marine Fisheries Commission agenda of the cabinet meeting on June 14, 1988. It was noted in a memorandum from the Office of the Governor to Sally Monroe from Billy Buzzett regarding Apalachicola Bay Oyster Dredging dated July 13, 1988, that the owner of lease numbers 525 and 609 appeared to be in compliance with the requirements of his leases and they were validly held leases from the State of Florida. Most of the currently leased [Apalachicola) bay bottom is not productive because of lack of oyster habitat. Annually, Apalachicola Bay is filled with oyster spawn (spat). The spat would naturally attach to oyster beds of oyster shell and culch if such beds were created where the bottom is now only mud. The owners of leases have the right to create oyster habitat on their leases and to hardest the oysters that may grow thereon. The cost of depositing oyster shell and culch materials on the mud bottom in adequate quantities to create a suitable habitat for spat is about $5,000.00 per acre. In recent years, approximately 90 percent of the oysters processed in Franklin County by shucking and canning have come from outside Florida, and only about 10 percent from Florida. The supply of oysters from outside of Florida is unstable largely due to water quality degradation in other states, as well as the loss of oyster habitat to development. The use of dredges could allow the holders of leases to harvest oysters from the leasehold more quickly and less expensively. The savings in money could then be used to create more oyster habitat. Except for potential illegal use of dredges [on public bars], misuse of dredges on lease holds (scooping of all oyster bar materials, without redeposit of the shell and culch), and fracture of thin shelled oysters on lease holds, there is no evidence that oyster dredges will cause biological or water quality problems in Apalachicola Bay. Those permitted to use dredges on private leases would have the economic incentive to use the dredges in a manner that does not destroy their financial investment in the leasehold. The foregoing facts represented by #l2 through 20, were all positions advanced by Respondent and the Florida Marine Fisheries Commission to defend the validity of Rule 46-27.0092 and were conclusively found by the State of Florida, Division of Administrative Hearings in Franklin County, Seafood Workers Association, Royce Watson and Leroy Hall, Petitioners v. Department of Natural Resources, and Florida Marine Fisheries Commission, Respondents, in the State of Florida, Division of Administrative Hearings, Case NO. 87-4438R, 10 FALR 2190 (March 31, 1988) An oyster lease is, among other things, an interest in land. Petitioner is the owner of Oyster Lease Nos. 525 and 609 which were issued pursuant to Chapter 370.16(16)(b), Fla. Stat. (1953). The terms of the leases in question are perpetual and convey interest in parcels located in Apalachicola Bay in Franklin County, Florida. Petitioner applied for a permit to use implements or appliances on his leases on June 30, 1988. Petitioner issued its final order of denial on September 28, 1988. Respondent has not commenced any proceeding to revoke Petitioner's oyster leases. Additionally, the parties stipulated to the facts set forth as Findings of Fact 27-29 in their Stipulation filed February 9, 1989. Petitioner is the lessee of Oyster Leases Nos. 525 and 609, which constitute leased bedding ground. Petitioner has agreed to furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as he may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law. The attached form of bond [attached to the Stipulation] is acceptable to and approved by the parties for the above-stated purpose. The only conditions precedent to the issuance of a permit to a lessee to use on leased bedding ground any implements or appliances as he may desire are: 1) that the applicant for the permit be a lessee of an oyster lease, and 2) that he furnish a bond payable to the Governor of the State of Florida, to be approved by the Division of Marine Resources, in the sum of $3,000.00, that any implements or appliances as the lessee may desire to use on his leased bedding ground shall not be used on the natural oyster reefs contrary to law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order and therein grant the application of Olan B. Ward for a special activity license to use mechanical harvesting implements on Oyster Leases No. 525 and 609. DONE and ENTERED this 20th day of April, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989. COPIES FURNISHED: Harold A. McLean Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Suite 1003 Tallahassee, FL 32399 Frank J. Santry Attorney at Law Granger, Santry, Mitchell & Heath, P.A. Post Office Box 14129 (32317) Tallahassee, FL 32308 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue The central issue in this case is whether Petitioner's wholesale dealer's license should be approved for renewal.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Henry's Seafood, Inc. was established and began doing business in 1978. From its inception Henry Torres has served as president of the company. Petitioner ceased doing business in May of 1986 when its application to renew its whole sale license to sell salt water products was denied by Respondent. On November 25, 1985, Henry Torres entered a negotiated plea of guilty to knowingly transporting with the intent to sell, offering for sale, and knowingly selling in interstate commerce approximately 120 pounds of undersized spiny lobster tails with a market value in excess of $350.00, knowing that said spiny lobster tails were possessed in violation of law. As a result of the plea, a conviction was entered and Mr. Torres was required to pay a fine in the amount of $10,000. On November 25, 1985, Petitioner, Henry's Seafood, Inc., entered a negotiated plea of guilty to the same charge described in Finding of Fact, paragraph 2. Petitioner was then found guilty and was placed on probation for two years. The negotiated pleas entered by Petitioner were done in the interests of minimizing costs relating to the defense of the criminal actions. Moreover, said pleas were entered with the express understanding that Petitioner would be allowed to continue in business. Additionally, it was the intention of the trial judge in imposing sentence that Petitioner be allowed to continue in business. There was never a factual determination that Petitioner did possess undersized lobster tails. In fact, Petitioner received payment for some of the lobster tails which had been seized. Mr. Torres denied having violated either the Lacy Act or Florida Law. The lobster tails were not the product of Florida but had been caught in waters elsewhere. The lobster tails seized from Henri's were combined with all of the lobsters seized from other business. It was impossible to determine how many, if any, were undersized. When Petitioner applied for the renewal of its license, a disclosure was given as to the conviction described in Findings of Fact, paragraphs 1 and 2.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Natural Resources enter a Final Order approving Petitioner's renewal application and placing said license on probation for a period of two years. DONE AND ORDERED this 1st day of October, 1987, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2394 Rulings of the Proposed Finding of Fact submitted by Respondent 1. Rejected, outside the scope of evidence Submitted at the final hearing. COPIES FURNISHED: Michael I. Rose, Esquire Suite 303, Roberts Building 28 West Flagler Street Miami, Florida 33130 Henri C. Cawthon, Esquire Assistant General Counsel 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Mr. Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
