The Issue The issues are whether Respondents engaged in unauthorized construction on their property in St. Johns County (County) without a permit; whether they should remove wooden shore-normal retaining walls and concrete sidewalks from an area seaward of the coastal construction control line (CCCL); whether they should restore any disturbed areas; and whether they should pay a $1,000.00 administrative fine.
Findings Of Fact Edith Pepper and Lyle Spencer are the owners of property located at 3100 Coastal Highway (also known as U.S. Highway A1A), St. Augustine, Florida. Although Ms. Pepper is named as the respondent in the enforcement action initiated by the Department, as owners of the property, both she and her husband are responsible for complying with Department rules and governing statutes.1 The Department is the regulatory agency charged with the duty of permitting and enforcing construction activities seaward of the CCCL. There are existing residences on both the north and south sides of Respondents' property. The parcel south of the subject property is owned by Lori T. Nichols and her brother, while the parcel on the north side is owned by Dr. Kenneth Reinhold. A small, one-story coquina house constructed in 1935 sits on the western side of Respondents' property facing the Coastal Highway and was occupied by Respondents for an undisclosed period of time after they purchased the property. In response to a CCCL application filed by Ms. Pepper, on November 20, 2002, the Department issued Permit No. SJ-844 to Ms. Pepper authorizing the construction of a large, 3-story single-family residence and deck, other structural activity, excavation, and placement of approximately 1,900 cubic yards of fill seaward of the CCCL. See Department Exhibit 1. When completed, the new home will be more than 8,000 square feet and sit on the eastern side of the parcel facing the Atlantic Ocean. The large amount of fill placed on the construction site resulted in raising the elevation of Respondents' property to between two and four feet above their neighbors' adjoining lots. Permit No. SJ-844 contains a detailed description of the location, dimensions, and structural activities for the project, including a requirement that it have "[d]rainage swales on the north and south sides of the [new] dwelling." Id. Another authorized activity was the construction of a "concrete driveway 120 feet in the shore-normal direction by 12 feet in the shore-parallel direction [to] be located a maximum of 54 feet seaward of the control line with control joints on 5-foot centers each way." Id. Special Permit Condition 4 further required that "[a]ll rubble and debris resulting from this construction shall be removed to a location landward of the [CCCL]." Id. Photographs received in evidence show that construction on the residence is now substantially completed. However, due to zoning code issues, a stop work notice was placed on the property by the County in 2008, and a Certificate of Occupancy has never been issued. On March 21, 2006, Ms. Pepper submitted a request to the Department to modify Permit No. SJ-844 and authorize the construction of a swimming pool, pool deck, and dune walkover seaward of the CCCL. The Final Order indicates that the application to modify the permit is now complete, but Ms. Pepper has waived the requirement that the Department take action on her request within 90 days after the application is deemed to be complete. Therefore, the modification has never been approved. On February 5, 2008, an Environmental Specialist in the District Office, Trey Hatch, conducted a routine inspection of the site and observed the unauthorized construction of wood retaining walls on the north and south property lines, the demolition and removal of a "derelict" septic tank and drain field seaward of maximum construction limits, and the storage of construction debris seaward of the maximum construction limits. See Department Exhibit 2. These activities were performed without Department approval. Mr. Hatch spoke with Mr. Spencer and advised him that any work beyond the scope of his permit required Department approval, and that the observed activities may be a violation of his permit. On February 20, 2008, the Department issued a Warning Letter to Ms. Pepper advising her that the activities observed by Mr. Hatch appeared to be in violation of her permit and section 161.053(2)(a). See Department Exhibit 3. After receiving a telephone call from "a citizen," on April 28, 2008, Mr. Hatch conducted a follow-up inspection of Respondents' property. He observed the construction of wood retaining walls along the north and south property lines; retaining walls still in place; the demolition and removal of a derelict septic tank and drainfield seaward of maximum construction limits; grading seaward of the new dwelling and creation of a 24' by 30' swale with berm sidewalls (which he believed might be for an above-ground swimming pool); and storage of building materials and debris seaward of maximum construction limits. See Department Exhibit 4. Mr. Hatch's report noted that "debris [observed during the February 5, 2008, inspection] has been removed." Id. During the inspection, Mr. Spencer advised Mr. Hatch that he was doing "perc tests," and not installing a swimming pool. On May 5, 2008, the Department issued a Notice of Violation/Cease and Desist Unauthorized Activities Seaward of the [CCCL] (Notice). See Department Exhibit 5. The Notice stated that the "violation consists of excavation, grading and placement of fill material seaward of the [CCCL] without benefit of a permit from the Department." Id. The Notice required Respondents to cease all unauthorized activities seaward of the CCCL and to respond to the Notice within ten days of receipt. Whether a response was filed is not of record. On May 12, 2008, Mr. Hatch conducted another on-site inspection of Respondents' property and observed that the wood retaining walls were still in place, and that Respondents had extended the retaining wall on the south side of the property to the western end of the existing wall. The violations observed on the April 28, 2008, inspection persisted. He also observed that the County had placed a stop work notice on the property. A Violation Report summarizing these activities was prepared by Mr. Hatch. See Department Exhibit 6. On June 6, 2008, the Department issued a letter advising Ms. Pepper that violations were occurring on her property; that Respondents' request filed on March 18, 2008, to "hold the file in abeyance" for 60 days pending the filing of an after-the-fact permit application that would authorize the retaining walls had expired; and that recently constructed concrete sidewalks on the property were not authorized under her permit. See Department Exhibit 7. The letter allowed Respondents an additional 21 days in which to file an after-the- fact application for both unauthorized activities; otherwise, it warned that an enforcement action would be initiated. After Respondents built the retaining walls, Dr. Reinhold, whose residence adjoins Respondents' property to the north, was forced to place two-by-fours against his fence because Respondents' retaining walls and fill were causing his fence to "bow" out. He also noted that fill is creeping under the fence and flowing onto his yard. Because of concerns that stormwater would now be forced onto his property, in the summer of 2008 he engaged the services of a professional engineer "to evaluate the conditions of [his] property . . . as it relates to problems with ongoing, adjacent construction [on Respondents' property]." Department Exhibit 10. The engineer's report indicated that there were no swales on Respondents' property to direct runoff to the front or rear yards; that the retaining walls were not stabilized; that in the event of a storm surge of ocean water, the fill and unauthorized sidewalks would have the potential of pushing more ocean water onto the adjoining properties; and that Respondents' deviation from permit requirements created a "very serious" situation. Id. These conclusions were not disputed by Respondents. Ms. Nichols, who owns the property to the south, stated that Respondents' retaining walls were leaning onto her property and there were gaps in the wall, which allowed run-off onto her property. Photographs received in evidence confirmed these concerns. See Department Exhibit 11. On June 5, 2009, the Department received an after-the- fact application for a CCCL permit from Ms. Pepper. However, the application was deemed to be incomplete in a number of respects, including a failure to attach a letter from the County indicating that all local zoning and setback requirements had been satisfied. See Department Exhibit 8. On May 10, 2010, the Department issued a Final Order advising Ms. Pepper that Respondents had initiated construction of wooden shore-normal retaining walls on their north and south property lines and concrete sidewalks on the sides of the existing single-family dwelling seaward of the CCCL without a Department permit. At hearing, Mr. Spencer did not dispute the accuracy of these charges. As mitigating circumstances, Mr. Spencer noted that he is currently in litigation with the County seeking to obtain approval of his site plan so that a letter indicating compliance with local zoning requirements can be filed with the Department. Until he secures a letter, the after-the-fact application cannot be completed. See Fla. Admin. Code R. 62B-33.008(3)(d). He indicated that a hearing in the circuit court case was scheduled on February 11, 2011, but the outcome of that matter is not of record. In a letter dated April 15, 2010, the County advised Respondents that their new home "contravenes local zoning regulations," but there are options available that would allow construction to proceed. See Department Exhibit 12. In order to complete construction of their new home, Respondents must agree to one of the following changes: removal of the one-story coquina residence; a reduction in the size of the guest house, private garage, or accessory family unit; or filing an application for a zoning variance to the front yard setback requirements for the one-story coquina residence in conjunction with one of the three reduction options described above. In addition, they must prepare and file a lot grading plan demonstrating that any fill added will not direct water to adjoining properties or block natural water flow from adjacent properties. Id. Until these steps are taken, the County will not provide a letter to Respondents confirming that the proposed activity does not contravene local zoning and setback requirements. Even though Permit No. SJ-844 required that drainage swales be constructed on both sides of the parcel, they were not built because Mr. Spencer concluded they would not work and, if installed, they would result in flooding on his property. After considering several alternatives, such as vertical landscaping and limerock, he decided that a small retaining wall would work best. However, this decision was the result of his own calculations and was not based on advice from a professional engineer. He also stated that he was advised by his engineer that no permit was required for retaining walls. More likely than not, however, the engineer was referring to requirements for a local building permit, and not a Department CCCL permit. Because of the engineer's advice, Mr. Spencer stated that he did not know he needed Department approval for the retaining walls. Mr. Spencer further noted that he was required to follow structural guidelines established by the Federal Emergency Management Agency (FEMA) and to place concrete slabs (sidewalks) on the sides of his house to help stabilize and support the second and third floors of the home in the event of a large storm event. Mr. Spencer stated that he has reduced the amount of fill authorized by the permit by 25 percent, and by installing sidewalks in lieu of a 120-foot driveway, he has used 1,200 cubic yards less concrete than is otherwise authorized. Even if the corrective action is taken, he opined that a large storm event will "wash away" his neighbors' homes, whose construction predates the new FEMA guidelines. Mr. Spencer acknowledged that he can easily remove the retaining walls, but if he does so, there will be nothing to prevent runoff from his higher elevated property onto the adjoining parcels. Finally, he expressed a willingness to comply with the permit conditions, but at the same time says he wants the Department to provide "a solution" to all of the objections to the project. Given the foregoing circumstances, the Department's proposed corrective action is deemed to be reasonable, and Respondents should remove the unauthorized retaining walls and concrete sidewalks and restore all disturbed areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order sustaining the charges in its Final Order. Respondents shall remove the unauthorized wooden shore-normal retaining walls and concrete sidewalks from the area seaward of the CCCL and restore any areas disturbed during the removal process within 30 days after a final order is entered in this matter. Further, Respondents shall pay a $1,000.00 administrative fine within the same time period. The check shall be mailed to Administrative Enforcement Section, Ecosystem Management and Restoration Trust Fund, Attention: Jim Martinello, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. The check should be payable to the Ecosystem Management and Restoration Trust Fund and include reference to file number VSJ 08-03 and OGC No. 10-1480. DONE AND ENTERED this 4th day of March, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2011.
The Issue The Florida Construction Industry Licensing Board, Petitioner, by its Administrative Complaint filed May 18, 1978, seeks to revoke the Certified General Contractor's license issued to Ira L. Varnum based on allegations contained therein to the effect that he aided or abetted an uncertified or unregistered person to utilize his registration with an intent to evade the provisions of Chapter 468, Florida Statutes, which prohibits the use of a registrant's registration by an uncertified or unregistered person. Additionally, the Petitioner seeks to assess an administrative fine in the amount of $500.00 against the Respondent, Ira L. Varnum, for failure to comply with the dictates of Chapter 468, Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the following relevant facts are found: Ira L. Varnum, a Certified General Contractor, is the holder of license No. CG CA00832 and, during the times material, was a Certified General Contractor. William H. Bosely, the Chief Codes Enforcement Officer for Deerfield Beach, Florida, appeared during the course of the hearing and testified that he is the custodian of the permit applications in Deerfield Beach. Mr. Bosely issued permits to Ira L. Varnum to construct one-story, single-family residences on property located at 3275 and 3285 Southwest First Court, in West Deerfield Beach, Florida. (See Petitioner's Composite Exhibits Nos. 1 and 2.) As best as can be determined from the permits, the construction activity commenced during late December, 1977; and on January 25, 1978, Respondent, Ira L. Varnum, mailed a letter to the Deerfield Beach building department requesting that the construction activity for the properties here in question be "red-tagged" and requesting the building department to cease inspecting the construction of such properties. The properties were "red- tagged" based on these letters. (See Petitioner's Exhibits Nos. 3 and 4.) Respondent, Ira L. Varnum, is the president of Structural Concrete Forming of Florida, Inc. Respondent Varnum testified that he entered into an agreement with his son-in-law, Angel Gonzales, James Monteleone and Frank Sepe, who were in a joint venture to construct approximately one hundred houses within a subdivision in West Deerfield Beach. According to Respondent, Structural Concrete Forming of Florida, Inc., was to be the contracting entity. Mr. Gonzales was to be the supervisor and Messrs. Sepe and Monteleone were to be the owners of the project, providing all funds necessary, and the profits derived from the building activity were to be equally divided into thirds. Mr. Gonzales, a developer residing in Boca Raton, testified that he simply contracted with his father-in-law, Respondent Varnum, to pull the building permits, and he agreed to "give his father-in-law something". According to Mr. Gonzales, he paid Respondent in cash $600.00 to pull the permits for the subject houses. Mr. Gonzales testified that Messrs. Sepe and Monteleone formed A-I-A Builders, Inc., to be the contracting entity for construction of the two houses which Respondent Varnum pulled the building permits for. According to Mr. Gonzales, Respondent Varnum visited the site on no more than two occasions after the concrete slab was poured for the erection of the homes. There is no dispute but that a controversy arose when Respondent Varnum was not permitted to order supplies and materials through Structural Concrete Forming of Florida, Inc., and for disbursement of all monies through that entity. The parties were unable to resolve their differences as to which firm would order and pay for the materials, and Respondent Varnum notified the building department of the City of Deerfield Beach that all construction activity of the subject projects would be halted forthwith until further notice. (Petitioner's Exhibits Nos. 3 and 4.) Initially, the building department "red-tagged" the two projects but later decided, based on letters received from Messrs. Monteleone and Sepe and Attorney Richard R. Haas to the effect that the controversies between Respondent Varnum and Messrs. Monteleone and Sepe should be resolved either in the courts or between themselves amicably. The Department issued owner/builder permits to Mr. Monteleone and, thereafter, action resumed sometime during April, 1978. By letter dated May 1, 1978, Mr. Monteleone advised the building department of the City of Deerfield Beach that "I have relieved Structural Concrete Forming, Inc., General Contractors, of all obligations pertaining to the development of one single family residence located on Lot 155, . . ." Additionally, Respondent Varnum testified that he received no monies from Mr. Gonzales, and that the agreement between him (Varnum), Gonzales, Sepe and Monteleone centered solely around their failure to permit Varnum's contracting entity, Structural Concrete Forming of Florida, Inc., to purchase, pay for and generally be responsible for the overall supervision and control of the two projects in question. In furtherance of this agreement, which was oral, Respondent Varnum testified that he received no monetary consideration. While this entire sequence of transactions appears to be suspicious, the undersigned, based on the evidence presented, is unable to rest a conclusion based on the disputed testimony of Messrs. Gonzales, Monteleone and Sepe that the Respondent engaged in the alleged unlawful conduct. While it is difficult to fully credit the version offered by Respondent Varnum, it is difficult to rationalize the versions testified by Messrs. Monteleone and Sepe to the effect that the Respondent had no obligations and yet a letter was sent to the building department advising that any and all obligations heretofore which were being performed by Structural Concrete Forming of Florida, Inc., were being released. In view thereof, I shall recommend that the complaint allegations filed herein be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 9th day of January, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 2400 Independent Square Jacksonville, Florida 32202 Norman D. Zimmerman, Esquire 737 East Atlantic Boulevard Pompano Beach, Florida 33060
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
The Issue The issues are whether the Department of Environmental Protection's (Department's) proposed agency action to issue a coastal construction control line (CCCL) permit to Respondents, Daniel G. and Doris L. Wentz (Wentzes or applicants), affects the substantial interests of Petitioner, James Hasselback, and if so, whether he timely filed his request for a hearing.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background This case is the latest chapter in a long-running dispute between adjacent property owners in Gulf County. In 1984, the Cape Haven Townhomes (Cape Haven), consisting of five two-story units on pilings, were constructed at 263 Haven Road on Cape San Blas just west of County Road 30E. Petitioner purchased his unit in 1985 and has owned it continuously since that time. The remaining units were purchased by several other individuals, including Barnett, Hosford, Steve Brady (Brady), and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman). Ownership in the Barnett unit is shared with two other persons, John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are, then, seven individuals having an ownership interest in the five units. Although the complex faced the Gulf of Mexico to the west, another lot, which at one time was approximately 350 feet deep and 65 feet wide, lay between Cape Haven and the Gulf of Mexico. Between 1985 and 1999, the lot lying between the Gulf of Mexico and Cape Haven remained vacant. In December 1999, the Wentzes purchased the lot, which is located at 193 Haven Lane. The lot is divided into Parcels A and B, which appear to be of equal size with both facing the Gulf of Mexico. See Wentz Exhibit 1. It can be inferred that they purchased the lot with the intention of constructing a single-family dwelling on the property. In February 2000, the Wentzes filed an application with the Department for a CCCL permit authorizing the construction of a home on Parcel B. On July 9, 2002, the Department issued proposed agency action approving the application and issuing Permit No. GU-305. A petition was filed by Barnett and Hanlon challenging this action, the matter was referred to DOAH and assigned Case No. 02-3252, an evidentiary hearing was conducted, and a Final Order was entered denying the application. Barnett, et al. v. Wentz, et al., DOAH Case No. 02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted, 2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding, Barnett and Hanlon were represented by the law firm then known as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel, Fernandez, Cole & Bryant, P.A. (the law firm). In September 2000, the Wentzes also filed an application for a field permit to enhance the dune system on their property. After the Department proposed to grant Field Permit 014292 authorizing the dune enhancement project, a petition challenging that action was filed by the law firm on behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and Hasselback. The matter was referred to DOAH and was assigned Case No. 00-4460. Before a final hearing was conducted, however, Petitioners filed a notice of voluntary dismissal. In 2004, the Wentzes filed another application with the Department for a CCCL permit, this time on Parcel A. On September 8, 2004, the Department issued its notice of intent to issue Permit GU-409. Notice of this action was not published. Therefore, actual or constructive notice was required in order to afford third parties, including Mr. Hasselback, a point of entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice means "either receipt of written notice or publication of the notice in a newspaper of general circulation in the county . . . in which the activity is to take place"). Besides the law firm, Barnett, Dohrman, and several others not relevant here received personal written notice of the Department's action. Thereafter, acting pro se Barnett timely requested at least six extensions of time to file a petition challenging the proposed agency action. The last extension lapsed on February 14, 2006, and neither Barnett nor any other Cape Haven owner requested a hearing by that date. In August 2005, the Wentzes filed an inverse condemnation suit against the Department. See Wentz v. State, Department of Environmental Protection, Case No. 05-270CA (14th Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued a Final Order stating that it intended to revoke Permit GU-409 on the grounds the property was not platted prior to October 1, 1985, and shoreline changes had occurred after the proposed agency action had been issued. See DOAH Case No. 06-2381. Presumably, the latter reason was based on severe erosion of the shoreline due to several storms or hurricanes that struck the Florida Panhandle. According to testimony at hearing, due to erosion caused by storm events, the lot has receded from its original 350 feet in depth to around 175 feet at the present time. (In Case No. 02-2352, the administrative law judge noted that between 1993 and October 2002, around 47 percent of the property's total depth, or 170 feet, had eroded. Barnett at *11.) This in turn requires that any structure built on the Wentzes' lot be much closer to Petitioner's unit. One witness estimated that the Wentzes' septic tank, drain fields, and driveway would be no more than 30 feet from the front of the complex, while the pilings supporting the structure would be no more than 40 feet from the complex. The Wentzes challenged the proposed revocation of Permit GU-409 and simultaneously filed a rule challenge. See DOAH Case No. 06-2309RX. In August 2007, the Wentzes and Department reached a global settlement on all pending matters, and in return for the Wentzes' dismissing all pending court and administrative actions and executing a conservation easement in favor of the State as to one of the two parcels, the Department agreed to issue a Notice to Proceed (NTP) with the construction on Parcel A and to extend the expiration date on Permit GU-409 from September 8, 2007, to May 8, 2010. Except for the extension of the expiration date, no other changes to Permit GU- 409 were made. An extension was necessary because the permit would otherwise expire within a month, and no activity on the property had occurred due to Barnett's six requests for extension of time to file a petition and the passage of time required to resolve the revocation case and reach a global settlement. After the NTP was issued, concrete pilings were placed on the site and still remain as of this date. According to recent photographs, no other construction has occurred pending the outcome of this case. See Petitioner's Exhibit 4. In response to the Department's action, on October 10, 2007, the law firm filed a Petition on behalf of Barnett and Hosford in which they claimed that they first learned of the Department's latest action by reading a real estate listing in early October 2007, which advertised the Wentzes' property for sale, including a three-bedroom, three-bath home then under construction. On October 19, 2007, the Wentzes filed with the Department a Motion to Dismiss the request for a hearing as being untimely. Barnett and Hosford were later dismissed from the case on the grounds a new point of entry was not required by the latest Department action, and they had waived their right to contest the issuance of Permit GU-409 by (a) Hosford's failing to timely file a petition after notice of the agency action was issued on September 8, 2004, and (b) Barnett's failing to file a petition after the last extension of time to do so expired in February 2006. See Order Granting Motion to Dismiss, Jan. 25, 2008. On or about October 23, 2007, or just after the Motion to Dismiss had been filed by the Wentzes, Petitioner was contacted first by Hosford and then Barnett, who asked that he participate in the case to challenge Permit GU-409 since they believed that "apparently . . . [he was] not noticed by DEP on GU-409", and Petitioner was "the key for all of us maintaining our rights." See Wentz Exhibit 23. Petitioner agreed to file a petition since he thought it was in the best interests of all of the unit owners and did so within a matter of "two or three days." The Petition was prepared by the law firm and was filed with the Department on October 26, 2007. Substantial Interests At hearing, and in pre-hearing discovery, Petitioner testified that his substantial interests would be affected by the proposed agency action in three ways: (a) it would adversely affect his view of the Gulf of Mexico; (b) it would negatively impact the value of his townhome; and (c) he feared that wind or waterborne missiles from the structure during a storm event would cause damage to his townhome, which lies directly behind and to the east of the proposed construction site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant must show that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm").1 The latter concern is the subject of the Wentzes' Motion in Limine briefly discussed in the Background portion of this Recommended Order. In addition to his testimony, on page 2 of the parties' Stipulation, Petitioner identifies the following concerns with the proposed agency action: The project does not satisfy the requirements or purpose of the statutes and rules limiting coastal construction; will diminish his observation and enjoyment of flora and fauna including sea turtles; will damage his property[;] and will have a significant adverse impact to marine turtles and the coastal system. Finally, in paragraph 21 of the Petition, the following allegation is made regarding the substantial interests of Petitioner: Should the permit be permitted, the Petitioner will no longer be able to enjoy the flora and fauna of Cape San Blas, the proposed project will jeopardize the Petitioner's continued enjoyment of his property at this location as described above, and the Petitioner's rights will be swept aside. The Wentzes argue that in demonstrating how his substantial interests are affected, Petitioner is limited to the reasons he gave during his testimony, both before and during the final hearing, irrespective of any other issues identified in his Petition or the parties' Stipulation. On the other hand, through counsel, Petitioner argues that he is a lay person, he cannot be expected to give opinion testimony in support of technical allegations in the pleadings and Stipulation, and that expert testimony may be used to establish how his substantial interests may be affected. A common thread in the testimony of Mr. Hasselback and the Stipulation is a concern that the proposed activity "will damage his property." See Stip., p. 2. Therefore, assuming arguendo that the Wentzes' argument regarding the standing issues that may be raised is correct, Petitioner is still entitled to offer proof that his property may be damaged by the proposed activity. As to the other two concerns stated in Petitioner's testimony, neither loss of view nor loss of economic value is a relevant consideration. See, e.g., Schoonover Children's Trust v. Village at Blue Mountain Beach, LLC, et al., Case No. 01- 0765, Recommended Order of Dismissal, April 20, 2001 (dismissing challenge to CCCL permit based upon allegations of loss of view and economic injury because "neither . . . is a protected interest in a proceeding under Section 161.053, Florida Statutes"). See also Young, et al. v. Department of Environmental Protection, et al., Case No. 04-3426, 2005 Fla. ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla. ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the contention that the issuance of a permit may cause wind or waterborne missiles to strike or cause damage to his property need be decided to resolve the standing issue. Rule 62B-33.005(4)(f) requires that an applicant for a CCCL permit demonstrate that "[t]he construction will minimize the potential for wind and waterborne missiles during a storm." Mr. Hasselback is concerned that if a dwelling is constructed in front of his unit as proposed and no more than 40 feet away, during a severe storm event parts of that structure may be carried by wind or water into his unit. Although any dwelling constructed on the coastline must be designed to withstand the impact of a 100-year storm, a coastal engineer established that even if the home is built to those standards, "substantial structural elements" (such as sections of roofing material, siding, stairways, and the like) may still be carried by water, or blown by the wind, into Cape Haven, which lies directly behind, and less than 40 feet from, the proposed structure. The expert also pointed out that both the Department and Federal Emergency Management Agency require that all frangible structural components (those that tend to break up into fragments) below the first living floor remain unattached to the home. In this respect, the evidence supports a finding that Mr. Hasselback could reasonably expect to be adversely impacted in this manner should a permit be approved.2 Petitioner's expert also established that the existence of the pilings on the Wentz structure could accelerate beach erosion and cause damage to the beach dune system on Petitioner's property. Because of the extremely high rate of erosion on Cape San Blas, he opined that such impact could occur soon after the Wentz structure was completed. In this additional respect, Petitioner's substantial interests could reasonably be expected to be affected by the issuance of a permit. Was the Petition Timely Filed? Mr. Hasselback is the Mary Ball Washington Eminent Scholar in the College of Business, University of West Florida, in Pensacola, but maintains a residence in Tallahassee. As such, he must commute between the two cities each week during the academic year. He also travels much of the other time. Because of his schedule, he stated that he visits his unit only "an average of once a year." The record shows that he occasionally communicates by email or telephone with other unit owners, particularly Barnett, who is considered the "leader" of the unit owners in opposing any development on the Wentz property. It is fair to infer that since the property was purchased by the Wentzes in late 1999, most, if not all, of the information derived by Petitioner (and other unit owners) about the Wentz property, including any proposed activities they have undertaken, has come from Barnett, rather than other sources. Throughout this case, Mr. Hasselback has consistently maintained that he was unaware that the Department proposed to issue Permit GU-409 until he spoke by telephone with Barnett and Hosford in late October 2007 after the Wentzes had filed a Motion to Dismiss the Barnett/Hosford Petition. After the Department denied the application for Permit GU-305 in August 2003, he says he assumed that the issue was closed and that no further development would occur on the Wentzes' property. There is no direct evidence to dispute these assertions. Notwithstanding Mr. Hasselback's testimony, the Wentzes and Department contend that the law firm has represented the unit owners as a group since 2000, when the first two applications were filed, and that this relationship was still in effect in September 2004 when the law firm received notice of the Department's proposed agency action regarding Permit GU-409. They go on to contend that an agency relationship between the unit owners and the law firm existed, that it is presumed to continue in the absence of anything to show its revocation or termination, that the law firm's receipt of separate written notice concerning Permit GU-409 constituted constructive notice on Petitioner, and a petition should have been filed within 21 days after receipt of notice. Conversely, Petitioner contends that the attorney-client relationship between him and the law firm ended when the litigation in Case No. 02-2352 was concluded in August 2003, that the law firm did not represent him in September 2004, and that any notice to the law firm regarding the issuance of Permit GU-409 cannot be imputed to him. For the following reasons, on two different bases, including one not addressed by the parties, it is found that Petitioner received constructive notice of the proposed issuance of Permit GU-409 on or about September 15, 2004. To resolve the contentions of the parties, a factual review of the relationship between the law firm and Cape Haven owners is necessary. As discussed in greater detail below, this task is a difficult one because of the large number of unit owners (seven), some of whom participated as parties in one case, but not the others, and who are referred to by the law firm in correspondence or other papers generically as "a group of property owners, "adjacent property owners," or "other Cape Haven Townhome owners," and in other papers by their specific names. Although the law firm normally required that its clients execute a letter of engagement before agreeing to represent them, this policy was not strictly followed, and some unit owners who had not signed a letter of engagement were named as parties in a Wentz proceeding, while others who had signed a letter were not. Finally, the record supports a finding that throughout the nine-year controversy between the parties, Barnett has been the individual who acted as liason between the other unit owners and the law firm. After the Wentzes filed their application for a CCCL permit in February 2000, on August 4, 2000, Mr. Hasselback and three other unit owners, Dohrman, Barnett, and Hosford, each signed a letter of engagement with the law firm, also known as a New Matter Report (Report), authorizing the firm to represent them in the Wentz matter. See Wentz Exhibit 13. Petitioner says he "most likely" learned about the proposed issuance of Permit GU-305 through Barnett, who urged all of the unit owners "to come together" in opposing the permit. Petitioner agrees that all of the unit owners acted as a group "to fight the field permit and the GU-305." Even though Hasselback, Dohrman, and Hosford each signed a Report, the Reports identified only Barnett, Hanlon, and Beranek, who share ownership in unit 5, as the clients in the matter; Barnett was listed as the contact person. However, there is no evidence that Hanlon and Beranek ever signed a Report. Presumably, as co-owners with Barnett of unit 5, they had informally agreed with Barnett to be named as clients and to reimburse him for their pro rata share of the costs. The subject of the Reports was the "potential challenge of coastal control permit" and contained no information as to when the firm's services would cease. On September 25, 2000, the Department proposed to issue a field permit to the Wentzes for dune enhancement. See Case No. 00-4460. On October 11, 2000, the law firm filed a petition challenging the issuance of that permit. The petition was filed on behalf of all seven unit owners, even though three had never signed a Report. Although he probably discussed the substance of the petition before it was filed, Mr. Hasselback admits that he did not know the difference between a field permit and a CCCL permit and said he signed his Report so that the law firm could take "action against [the Wentzes] being able to build on [their] property." On October 20, 2000, the law firm also sent a letter to Department counsel requesting Department counsel to remind the Wentzes that a petition had been filed on behalf of its clients, that Permit 014292 was only proposed action, and that the Wentzes should not proceed with any work on the site. See Wentz Exhibit 3. The letter reflects that all of the Cape Haven owners, including Petitioner, were copied with that correspondence. The law firm's representation of the unit owners as a group at that time was confirmed by a letter sent to the Department on October 1, 2001, stating that the firm represented all of the Cape Haven owners, including Barnett, Dohrman, both Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in their challenge to the Permit GU-305 application. It also requested notice of any decisions regarding the permit and a point of entry. See Wentz Exhibit 17. A copy of the letter was sent to all unit owners, including Petitioner. When the Department issued its formal proposed agency action regarding Permit GU-305 on July 9, 2002, it sent separate written notice to a member of the law firm on the same date. See Wentz Composite Exhibit 8. A petition was then timely filed by the law firm challenging that action. Notwithstanding the firm's letter of October 1, 2001, which indicated that all of the unit owners were opposing the issuance of a CCCL permit, only Barnett and Hanlon (who had not signed a Report) were identified as petitioners in the GU-305 case. Petitioner acknowledged, however, that he and the owners of three other units, but not Brady, agreed to share in the expenses of that case even though they were not named as parties. In all, he paid more than $35,000.00 in legal fees.3 (Brady, who owns unit 3, did not sign a Report, and according to Petitioner, he would not agree to share legal expenses in opposing the Wentzes' applications; even so, his name was on the petition filed in Case No. 00-4460.) Before Case No. 02-3252 was concluded, by letter dated January 15, 2003, the law firm, through a former member, Patricia A. Renovitch, Esquire, made the following request to Michael W. Sole, then Bureau Chief of the Department's Bureau of Beaches and Wetland Resources: Please consider this a request on behalf of adjacent property owners for notices about points of entry prior to the issuance of any permits to, and notices of any applications filed by, Doris and/or Daniel Wentz regarding the coastal lots they own on Cape San Blas that are described in File Numbers GU-375 and GU-305 (DOAH Case No. 02-3252 and OGC Case No. 02-1127). This would include notices of any applications for coastal construction control line permits or "dune enhancement" permits for these lots. (Emphasis added) In this instance, the law firm identified the unit owners as "adjacent property owners" without any further specificity. It can be inferred, however, that the law firm was still representing the entire group. At hearing, Petitioner acknowledged that because Case No. 02-3252 was not yet concluded, the law firm was still representing him when the letter was sent. He also agreed that the letter authorized the law firm to receive notices of "any applications" on behalf of him and the other unit owners the Wentzes might file in the future. Petitioner says his relationship with the law firm ended on August 4, 2003, when the Department issued a Final Order denying the application for Permit GU-305. He acknowledges that he never notified the Department or the law firm that the relationship ended on that day, and he did not instruct the law firm to revoke his prior authorization to receive notices of "any applications" that might be filed by the Wentzes in the future. Lacking any contrary information, the law firm did not advise the Department that it no longer was his agent for purposes of receiving notices. In response to Ms. Renovitch's letter sent to the Department in January 2003, on June 4, 2004, the Department sent a letter to the law firm (and Barnett individually) advising that the Wentzes had just filed another application for a CCCL permit, that it was being assigned File Number GU-409, and that any comments should be filed within ten days. See Department Exhibit 4o. In response to the Department's letter, on June 15, 2004, Ms. Renovitch filed a letter with the Department indicating in part as follows: Please consider the following comments made in behalf of our clients, Richard Barnett and other Cape Haven townhome owners of adjacent and/or upland property to the property described in the above styled application. (Emphasis added) The letter went on to state that "Mr. Barnett and other similarly-situated upland/adjacent property owners of Cape Haven townhomes submit their carefully considered objections to the issuance . . . of GU-409." See Department Exhibit 4o. Based on this correspondence, it can be inferred that in June 2004, at least for purposes of receiving "notices of any applications" filed by the Wentzes and submitting comments on behalf of the unit owners, an apparent principal-agent relationship still existed between the "other Cape Haven townhome owners" and the law firm, and that Petitioner was one of the unit owners being represented for those purposes. A copy of the letter was provided to Barnett, who presumably approved its content. On September 13, 2004, or five days after the Department issued its proposed agency action to issue Permit GU- 409, the Department sent separate written notice of this action to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a coastal engineer in Jacksonville, Florida, who testified as a consultant for Petitioner in this case, and several other individuals not relevant here. See Wentz Composite Exhibit 8. The notice was received by Barnett on September 15, 2004, and presumably by the law firm on or about the same date. See Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman, and Olsen were also given separate written notice since they had each filed additional written objections in response to the Department's letter of June 4, 2004.) Although Barnett promptly contacted the law firm after receiving the notice to discuss the case, there is no evidence that the law firm contacted or spoke with any of the other unit owners regarding the proposed agency action. More likely than not, this was because it assumed that, based on the prior conduct of the parties, Barnett was the leader or "contact" person for the group and would convey any pertinent information to the other unit owners. While the law firm had not yet agreed to represent any of the unit owners on the merits of the GU-409 case since new Reports had not yet been sent out, see Finding 32, infra, the law firm was still Petitioner's agent for purposes of receiving notice of "any applications," and its receipt of the Department's notice on or about September 15, 2004, constituted constructive notice on Petitioner. On September 27, 2004, Ms. Renovitch emailed Kenneth Oertel, Esquire, the senior partner in the law firm, regarding the proposed agency action to issue Permit GU-409 and advised him as follows: Rick [Barnett] called a couple of times last week about the GU-409 case. He and John Beranek are in charge of overseeing the case (assuming we take it). They have approved the content of the Petition (per the memo I sent early last week.) I spoke to Rick Barnett several times about the balance (approx. $10K) on the bill in GU-305 (first Wentz CCCL permit). He said it's owed by Tom Dohrman and he will try to get a letter confirming when and how Tom will pay the balance. In the new case, the clients would be Rick, John Beranek, Jim Hasselback, Laurie Hosford, and Tom Dohrman. They will be paying equal shares. We have the NMRs [New Matter Reports] ready to send out, but have not sent them due to the unpaid balance in the first case. Rick wants to meet with DEP counsel Mark Miller and Tony McNeal about the GU-409 case this week . . . . Tony is very busy with hurricane impact emergencies . . . [and] Mark suggested Rick file a request for an extension to file the Petition. (Emphasis added) See Wentz Exhibit 9. Mr. Hasselback is not listed as a recipient of the email and he never spoke with Barnett or Ms. Renovitch about the case. He attributes the mentioning of his name in the email and being named as a party in the proposed petition to an assumption on the part of Barnett that "we may still have a group." However, given the prior conduct of the parties, it is reasonable to infer at a minimum that Barnett had Petitioner's implied authority to instruct the law firm to include his name on the proposed petition and to represent that Petitioner would share in the costs of the action. In response to that email, Mr. Oertel replied by email the same date that "we can't take a case where the client already owes us a substantial sum and has a hard time paying it. It will mean at best we will get paid only 80% of our bill." Id. At the suggestion of Mark Miller (Department counsel), Barnett requested that the Department grant him an extension of time to file a petition in order not to waive the 21-day filing requirement, which expired on October 6, 2004. The first request for an extension of time was filed on September 27, 2004, and stated in part that "I request a two week extension to October 20, 2004, for the homeowners of Cape Haven to consider all issues that could be raised in filing a potential challenge to this permit." (Emphasis added) See Department Exhibit 4n. The "homeowners" are not otherwise identified, although it is fair to infer that they were the five unit owners identified in the proposed petition whose content was approved by Barnett and Beranek. According to Ms. Renovitch's email of September 27, 2004, by requesting an extension of time, this would also "give [Barnett] more time to try to get Tom Dohrman to set up a payment plan." The last request for an extension of time was filed on November 14, 2005, and expired on February 14, 2006. Barnett says that he "lost track of the time and didn't submit [a seventh request] in time, but [he] clearly intended to submit [one]". The end result was that the law firm did not accept the case in September 2004, no petition was filed, and a new Report was not executed by any unit owner. After reading an advertisement regarding the potential sale of the Wentz property in October 2007, Barnett and Hosford engaged the services of the law firm to file a petition challenging the action taken by the Department in August 2007. There is no evidence that they signed a new Report authorizing the law firm to represent them. As noted above, their petition was later dismissed as being untimely. The law firm then filed a petition on behalf of Petitioner, who agrees that it was filed "to maintain the rights" of the group. However, he has not signed a new Report for this case, he has not been billed for any legal fees, he believes that Barnett is paying "some of the cost," but he expects he will probably end up paying a part of the legal fees incurred in this action. Based upon the facts of this case, and the conduct of the parties, the record also supports a finding that a principal-agent relationship existed between Petitioner and Barnett. As noted above, Barnett has always been the leader of the group of unit owners in opposing any development on the Wentz property. He communicated in writing and by telephone with Department personnel on numerous occasions over the years regarding the status of the activities on the property and periodically relayed this information to other unit owners by telephone or emails. Even though the law firm was given notice on behalf of the unit owners, Barnett also requested separate written notice from the Department for any applications filed after the GU-305 case, including the GU-409 permit. Barnett was initially identified by the law firm as the contact person for the group and has regularly met or communicated with the law firm regarding the various permits being challenged. It is fair to infer that the law firm assumed that Barnett had the authority to act on behalf of the other unit owners in coordinating their opposition to any permit challenges. This is evidenced by one of its emails indicating that Barnett was "in charge of overseeing the [GU-409] case" and that he approved the content of the proposed petition in which Mr. Hasselback was named as one of the parties. Although no longer a party in this case, he continues to discuss strategy of the case with counsel and other unit owners, including Petitioner. Finally, since the inception of these disputes, the record supports a finding that the law firm has invoiced Barnett for its legal fees, and Barnett then seeks reimbursement from the other owners, including Petitioner. Therefore, it is reasonable to infer from the evidence that because of his work schedule and travel, and infrequent visits to his townhome, since 2000 Petitioner has, at a minimum, impliedly authorized Barnett to serve as his agent to advise him about any activities by the Wentzes that might potentially impact the value of his townhome. The fact that Barnett did not always timely convey the information, as was the case here, does not negate this relationship. Because notice was received by Petitioner's agent on September 15, 2004, the time for filing a challenge to the issuance of Permit GU-409 expired 21 days after receipt of that written notice, or on October 6, 2004. Assuming that Mr. Hasselback was one of the "homeowners of Cape Haven" referred to in Barnett's first request for an extension of time to file a petition on September 27, 2004, and the subsequent five requests, the time for filing a petition expired no later than February 14, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Petition of James Hasselback as being untimely. DONE AND ENTERED this 28th day of January, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2010.
The Issue The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes. POSITION OF PARTIES This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest. The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code. Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East. Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action. In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2. In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4. Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules. Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou. He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7. Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982. However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou. Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction. He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11. Falconer did not have a permit to alter mangroves. The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou. Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling. On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above. The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order. Respondent Falconer has complied with the requirements of the Consent Order. The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7. The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses: On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare. Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit. Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications. Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company. The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately $75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985. Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou. According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch. Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction. The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou. Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
Recommendation Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer. DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida. DONALD D. CONN 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 22nd day of January 1987. APPENDIX (DOAH Case No. 86-2462) Rulings on Proposed Findings of Fact filed by Sarasota County: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative and unnecessary. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11. Rejected since this is a conclusion of law. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 15 Adopted in Finding of Fact 20. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 21-22 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as irrelevant and unnecessary. 35 Adopted in Finding of Fact 23. 36-37 Rejected as irrelevant and otherwise simply a summation of testimony. 35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25. 44-46 Adopted in Finding of Fact 26. 47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence. 45-50 Adopted in Finding of Fact 25. 51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-9. Adopted in Findings of Fact 10-13. Adopted in Findings of Fact 14, 15. 5 Adopted in Findings of Fact 16-19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. 11-12 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20, 25. Adopted in Finding of Fact 20. 16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 20, 21, 25. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20-22. Adopted in Findings of Fact 22, 29. Adopted in Finding of Fact 20. Adopted in Finding of Fact 25. Adopted in Findings of Fact 23, 27. Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 5, 9. Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary. 12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22. Adopted in Findings of Fact 14-16. Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 24. 27-25 Rejected as irrelevant and unnecessary. 29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 26. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Wallace L. Storey, Esquire David M. Levin, Esquire P. O. Box 5 Sarasota, FL 33575 David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William M. Hereford, Esquire 1299 South Tamiami Trail, #1233 Sarasota, FL 33579 Dale Twachtmann Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issue for determination at the final hearing was whether the Petitioner Blaha possessed the requisite standing to maintain this action and if so, whether the Applicant Aquarina Developments, Inc., established by a preponderance of the evidence entitlement to a permit from the Coastal Construction Control Line ("CCCL") which would authorize construction of the following: (1) twelve above-ground balconies extending five feet over the CCCL; (2) two roof overhangs extending approximately one foot over the CCCL; (3) two dune walkovers and four decks providing elevated beach access; and (4) a temporary fence extending no more than five feet beyond the CCCL. At the final hearing, the Respondent Aquarina Developments, Inc., (hereafter "Aquarina" or "Applicant") offered Respondent's Exhibits 1-16, which were admitted into evidence. Edward Fleis, Howard J. Teas, Bert Leltz and Ross Witham testified on behalf of the Respondents. Peter Pritchard, Rob Lee and Georges Blaha testified for the Petitioner. Additionally, public comment was taken as provided at Section 120.57(1)(b)(4), Florida Statutes. A Proposed Recommended Order has been submitted by the Respondent Aquarina Developments, Inc. To the extent that the proposed findings submitted by Respondent are not reflected in this Order, they are rejected as unsupported by the weight of credible evidence or as being immaterial to the results reached.
Findings Of Fact By application No. 775-020.61 filed on July 1, 1981, Respondent Aquarina requested a coastal construction permit for construction of portions of twelve cantilevered balconies, two roof overhang sections, a temporary construction fence, four elevated wooden decks, and two dune crossovers, all seaward of an established coastal construction control line ("CCCL") in Brevard County, Florida. The purpose of the proposed structures is to enhance utilization of the beach by residents of Aquarina's PUD located between the Atlantic Ocean and Mullet Creek, a tributary of the Indian River in South Brevard County, while at the same time inhibiting the deleterious effects of unrestrained pedestrian and vehicular access across the beach dune on the property. Respondent Aquarina's project is located on the barrier islands separated from the mainland by the Indian River, thirteen miles south of Melbourne and five miles north of Indian River County. Aquarina proposes to develop a condominium community approved as a PUD by Brevard County, with a projected population of 3,400 persons including 1,600 residential units, a commercial area, and 500 hotel rooms. The project includes at least two condo- mini urn buildings located entirely landward of the CCCL except for the following specific portions: Twelve cantilevered balconies ex- tending approximately five feet beyond the CCCL but not touching the ground; Two roof overhang sections extending approximately one foot beyond the CCCL; Two beach-dune walkover structures to be constructed a maximum of seventy- five feet seaward of the CCCL, which are to provide controlled beach access; Four elevated wooden observation decks constituting integral parts of the walkover structures; A temporary construction fence extending no more than five feet beyond the CCCL. On or about November 20, 1981, the Department indicated its intent to recommend to the Executive Director the issuance of the Applicant's coastal construction permit. After the granting of a requested extension of time, Petitioner Blaha filed objections and a Petition for the Initiation of Formal Proceedings under Section 120.57, Florida Statutes. The Petition raised three issues: Whether construction of the proposed minor structures seaward of the CCCT would harm sea turtles inhabiting the area at issue; Whether a new CCCL should have been set based on changing conditions in the area; Whether the additional shading caused by the proposed structures would harm the dune vegetation system. At the beginning of the hearing, the Hearing Officer heard argument and received evidence on the issues raised by the Motions to Dismiss filed by the Department and the Applicant. The Respondent's Motions raised three issues: Whether the Petitioner had standing to initiate this cause; Whether the alleged impact that the Applicant's proposed coastal construction would have on sea turtles lies within the jurisdiction of the Department and the Hearing Officer under Chapter 161 of the Florida Statutes; and Whether the exact configuration of the CCCL is a proper subject for consi- deration at a hearing challenging the proposed issuance of a coastal construction permit. Petitioner Blaha admitted that he did not live on the beach at issue and in fact lived on the west side of State Road A1A, three miles to the north of the Applicant's proposed project. The Petitioner stated that he was the Director of the Space Coast Branch of Friends of Animals, an environmental organization concerned about wildlife, although not representing the organization in this proceeding, and that he had a general interest in protecting the beach from erosion, a problem affecting everyone on the barrier island. In response to the argument that Petitioner Blaha had no special interest differing in kind from the interests of the general public, the Petitioner alleged that he runs on the beach and observes the sea turtles, arguing that this evinces a more than average interest in protecting the beach and its wildlife. The Hearing Officer also heard argument on whether the Department has jurisdiction to consider potential impacts on the nesting habitats of sea turtles from proposed coastal construction, under Chapter 161, Florida Statutes. Petitioner Blaha urged that although Section 161.053, Florida Statutes and the rules promulgated thereunder do not address sea turtles and their protection, the statute should be so interpreted. The Department responded that any jurisdiction it may have over sea turtles would be reposited in its Marine Resource Division, not in the permitting procedures for a coastal construction permit. In addition, federal laws protect endangered sea turtles, and the federal government has primary jurisdiction over the regulation of the nesting habitats of such sea turtles. Similarly, the Applicant and the Department pointed out that the Petitioner's criticism of the placement of the present CCCL falls outside the scope of a hearing on the issuance of a coastal construction permit, since Section 120.54, Florida Statutes provides for rulemaking proceedings for those attempting to change a rule established CCCL and Rule 16B-33.10, Florida Administrative Code, contains provisions for CCCL revisions or modifications on application of a riparian owner of property at or on the CCCL. Petitioner Blaha is not a riparian property owner and this was not a proceeding under Section 120.54, Florida Statutes. Respondent Aquarina established that it had taken and would continue to take all reasonable actions necessary to ensure the protection of sea turtles that inhabit the site through public relations campaigns and public advertisements to educate the public and especially the residents of the PUD and through architectural design efforts and dareful construction practices that will limit the impact of the proposed development on sea turtles and their nesting habitats. Moreover, to the extent that the development might have an impact on sea turtles, the source of the impact would not primarily be the structures at issue in these proceedings, but the buildings, parking lots, and other human habitation lying landward of the CCCL. The proposed temporary construction fence to be placed five feet beyond the CCCL will help conserve the dunes by limiting the potential impact of construction, and the Respondent Aquarina has agreed to restore that affected area to its natural state upon the completion of construction. Most importantly, the proposed dune crossovers will protect the dunes from the destruction that is occurring in the dunes to the north of the project and on the project site itself because of unrestrained pedestrian and vehicular traffic over and/or through the dunes and the accompanying destruction of dune vegetation in those areas. The dune crossovers are wooden walkways on raised pilings designed to have as little contact with the dunes as possible, with railings to restrain pedestrians from straying away from this direct access from the condominiums to the beach. The crossovers will make it unnecessary and undesirable for residents and visitors to create alternative foot paths through the heavy dune vegetation to the beach. Coupled with the educational program already being implemented by Aquarina, the dune crossovers should help to conserve the dunes. The Respondent Aquarina established that the incremental shading caused by the proposed roof overhangs extending about one foot beyond the CCCL and the cantilevered balconies extending approximately five feet beyond the CCCL would not significantly add to the shading from the buildings themselves, which lie entirely landward of the CCCL. The evidence showed that even the impact of the shading from the landward buildings would have no significant impact on the dune vegetation system or increase the rate of erosion or deterioration of the dune. See Rule 16B-33.02(23)(b), Florida Administrative Code. The additional impact from the minor structures for which the Respondent Aquarina seeks its permit should be minimal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent Department of Natural Resources, through its Executive Director, grant the requested construction control permit to the Applicant Aquarina Developments, Inc., subject to the conditions stated in the proposed permit (No. BE-80), the draft of which was attached to the Department's letter of November 20, 1981, notifying Petitioner Blaha of the Department's intent to issue the requested permit. DONE and ORDERED this 25th day of October, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 ApA1Achee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1982. COPIES FURNISHED: Georges Blaha 280 Flamingo Drive Melbourne Beach, Florida 32951 Deborah A. Getzoff, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Clifford A. Schulman, Esquire GREENBERG TRAURIG ASKEW HOFFMAN LIPOFF QUENTEL & WOLFF, P.A. 1401 Brickell Avenue Miami, Florida 33131 Henry Dean, Esquire General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Executive Director Department of Natural Resources 3900 Commonwealth Building Tallahassee, Florida 32303
The Issue The issues in these cases are whether Respondent violated sections 489.129(1)(i), 489.129(1)(o), and 489.1425, Florida Statutes (2007 & 2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact At all times material to the administrative complaints, Mr. Organo was licensed as a certified general contractor in the State of Florida, having been issued license number CGC 1512005. At all times material to the administrative complaints, Mr. Organo was the primary qualifying agent for Bennett Marine Contracting and Construction, Inc. (Bennett Marine). On or about September 29, 2007, Jean Walker (Ms. Walker) entered into a contract with Bennett Marine to construct a dock and a tiki hut at 12305 Boat Shell Drive. The contract (the Walker contract) provided that the contractor would make application for a permit from Lee County, Florida. Mr. Organo signed the Walker contract for Bennett Marine. It is undisputed that the Walker contract did not include a written statement explaining Ms. Walker's rights under the Florida Homeowners' Construction Recovery Fund. On October 24, 2007, Bennett Marine applied for a permit to construct the dock. The application was denied October 29, 2007, because the site plan contained the tiki hut. When the tiki hut was removed from the application, the dock permit was approved. Ms. Walker paid Bennett Marine draws on the construction project. The payments were given to Mr. Organo. The payments totaled $9,200. By February 2008, a tiki hut had been constructed on Ms. Walker's property without a permit. Because the tiki hut was built without a permit, and it was in an illegal location, Lee County required that the tiki hut be removed. By April 2008, the tiki hut had been removed, and another tiki hut had been built in its place. Again, no permit was pulled for the tiki hut, and it was placed in an illegal location. Again, Lee County required that the tiki hut be removed. Mr. Organo subcontracted the construction of the tiki hut to Rick Fewell Chickees. Mr. Fewell of Rick Fewell Chickees, a Seminole Indian,2/ applied for a permit to build a tiki hut, but the application was rejected because the plot plan was not to scale, and the tiki hut did not meet the setback requirements from the water. Another tiki hut was built, and, in March 2009, Lee County again cited Ms. Walker for not having a permit for the tiki hut and for not meeting the setback requirements. In 2010, a permit was finally issued for the construction of a tiki hut on Ms. Walker's property. The permit was issued to Ms. Walker. Bennett Marine commenced work on the tiki hut without obtaining a building permit. On January 5, 2010, Bennett Marine entered into a contract with Chris Bevan (Mr. Bevan) to remove an existing dock, uninstall an existing boatlift, construct a dock, construct a tiki hut, and to reinstall the boatlift. The contract (the Bevan contract) required that the contractor obtain a City of Cape Coral building permit. The Bevan contract was signed by Mr. Organo for Bennett Marine. It is undisputed that the Bevan contract did not contain a written statement explaining Mr. Bevan's rights under the Florida Homeowners' Construction Recovery Fund. On March 17, 2010, Bennett Marine showed up on Mr. Bevan's property and commenced work, by knocking down a cantilever dock that was hanging over a seawall, removing old decking from the boatlift, and rough-framing part of the new dock. Bennett Marine worked until approximately March 25, 2010. That was the last that Mr. Bevan heard from Mr. Organo or Bennett Marine. Mr. Organo applied for a building permit for the Bevan contract on April 1, 2010. The permit was approved on April 13, 2010, but it was not issued. On May 14, 2010, the City of Cape Coral placed a stop-work order on the Bevan project. Mr. Bevan applied for an owner-builder permit for the dock construction, and the permit was issued on June 9, 2010. Mr. Bevan completed the dock construction at additional expense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Organo violated sections 489.129(1)(i), 489.129(o), and 489.1425; imposing a fine of $250 each for the Walker contract and the Bevan contract for a total of $500, for failure to advise the owners of the recovery fund; imposing a fine of $3,000 and placing Mr. Organo on probation for two years for beginning work without a permit for the Walker contract; and imposing a fine of $1,000 and placing Mr. Organo on probation for one year for beginning work on the Bevan contract without a permit with the one-year probation to run concurrently with the probation imposed for the Walker contract. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 13th day of April, 2011.
The Issue The issues are whether Respondent violated Sections 489.129(1)(i) and 489.129(1)(o), Florida Statutes, and if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a Certified Plumbing Contractor, holding License No. CF C056847. Respondent has maintained an active license since October 19, 1995. At all times material to this proceeding, Respondent conducted his business under the name of Ron Price Plumbing and Tile. On May 18, 2000, Respondent's business was located at 2043 Mike Street, South Daytona, Florida. On May 18, 2000, Respondent gave Edward Carlson a written proposal to perform some repair work in a bathroom at Mr. Carlson's residence, which was located in Daytona Beach, Volusia County, Florida. The letterhead on the written proposal indicates that Respondent's business address was 2043 Mike Street, Daytona Beach, Florida. The written proposal states that for the sum of $1,200, Respondent would perform the following work : (a) remove floor and bottom two rows of tile; (b) install PVC pan and drain; (c) install dura rock to walls; (d) install four-by-four wall tile; (e) install second floor; (f) install two-by-two floor tile; (g) use white grout; and (h) haul away refuse. Mr. Carlson accepted this proposal. Respondent did not pull a permit from the City of Daytona Beach Building Department before commencing the work in Mr. Carlson's bathroom. The City of Daytona Beach, Florida, requires a permit for the type of work performed by Respondent, even though very few plumbers or contractors actually take the time to pull one. Specifically, City of Daytona Beach Ordinance 104.1.4.1 requires a permit for minor repairs exceeding $500. Respondent, subsequently, completed the work in Mr. Carlson's bathroom. Mr. Carlson inspected the work and paid Respondent $1,200 as agreed. There is no credible evidence that Respondent's work was substandard or that he damaged Mr. Carlson's property in any respect. Thereafter, Respondent moved his business to 6089 Airport Road, Port Orange, Volusia County, Florida. As of September 1, 2000, Petitioner's records correctly reflect Respondent's current address of record at the new business location. Petitioner expended $312.48 in total cost, excluding attorney's fees, for investigating, filing, and pursuing the complaint against Respondent through the administrative complaint process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent guilty of violating Section 489.129(1)(o), Florida Statutes, imposing an administrative fine in the amount of $500, and assessing investigative costs in the amount of $312.48. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2001.
