The Issue The issues in this case are whether Franklin County (County) violated the law by placing unauthorized construction debris and material within a permitted revetment seaward of the coastal construction control line (CCCL); and whether the County should be required to take corrective action to remediate this violation.
Findings Of Fact Count I Since an undisclosed date in the late 1970s, the County has owned and maintained that portion of County Road 370, also known as Alligator Drive, located at Alligator Point in the southeastern tip of the County. Before then, the road was classified as a secondary road owned and maintained by the Department of Transportation (DOT). Sometime during the late 1970s, the Legislature transferred the ownership and control of some secondary roads, including County Road 370, from the State to local governments. A revetment is a man-made sloping structure, typically using rock boulders, designed in this case to protect County Road 370 from coastal erosion by absorbing the energy of incoming water from the Gulf of Mexico. It is the only structure protecting that roadway from the open winds and waters of the Gulf of Mexico. In regulatory parlance, a revetment is "armoring," also known as a "rigid coastal armoring structure" within the meaning of Florida Administrative Code Rule 62B- 33.002(5) and chapter 161. The Department has established a CCCL for the County. A permit is required before any person may conduct construction activities seaward of that line. However, if public infrastructure is threatened or damaged by erosion related to a storm event, as an emergency measure, a local government may construct a temporary armoring structure without first obtaining a permit from the Department. See § 161.085(3), Fla. Stat. Once the temporary structure is installed, the local government has 60 days in which to remove it or file an application for permanent authorization of the structure. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62-33.0051(5)(g). Construction debris may not be used for emergency protection. See § 161.085(6), Fla. Stat.; Fla. Admin. Code R. 62B-33.0051(5)(f). Construction debris is defined as "material resulting from the demolition of a structure" and does not "include such material which has been sorted, cleaned, and otherwise processed such that it meets the suitability criteria for armoring materials set forth in this rule chapter." Fla. Admin. Code R. 62B-33.002(15). On October 5, 1971, the Department of Natural Resources (DNR), which was later merged into the Department, issued to DOT Permit No. BBS 71-33 for the construction of a rock revetment on the south side of County Road 370 in the area that is the subject of the Amended NOV. See Department Ex. 2, ¶9. A Final Order issued by DNR on May 29, 1986, states in part that while the project was never constructed, "[s]ince 1971, DOT did place loose rock and rubble debris on several occasions in noncompliance to any engineering design and without construction." Id. However, a Department inspection in 1996 revealed that no debris was located within the area where the current revetment is built. See Finding of Fact 6, infra. On May 29, 1986, DNR issued to the County CCCL Permit No. FR-204 for the construction of a 1,500-foot rock revetment seaward of the established CCCL and adjacent to portions of County Road 370 abutting the Gulf of Mexico. See Department Ex. 2. The revetment was located approximately 350 feet east of DNR's [now Department] reference monument R-211 to approximately 150 feet west of DNR's reference monument R-213. Id. at ¶ 1. On November 7, 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the original revetment authorized in 1986 and extension of the eastern limits of the structure. The revetment is located approximately 540 feet west of Department reference monument R-212 to approximately 140 feet east of Department reference monument R-213. See Department Ex. 3. The permit did not authorize placement of any construction debris within the revetment. On February 5, 1996, the County certified that the revetment was constructed in compliance with the permit. See Department Ex. 4. A final site inspection performed by the Department revealed that no unauthorized construction debris or other material had been placed in the permitted revetment. See Department Ex. 5. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along County Road 370. As an emergency measure after the storm event, the County replaced rock boulders that had been displaced back into the rock revetment seaward of the CCCL. It also placed unauthorized concrete debris and other debris material within the footprint of the rock revetment seaward of the CCCL. The unauthorized debris material has never been removed. Such debris poses a potential safety hazard to the public. On September 11, 2006, the County submitted to the Department an application for a joint coastal permit, which would authorize a 2.9-mile beach and dune restoration project along a segment of the Alligator Point shoreline. In 2007, a Department site inspection (attended by County officials and its consultant) revealed the presence of concrete debris and other debris material stacked on top of and intermixed with the previously permitted rock revetment. The purpose of the site inspection was to have the County's consultant formulate a debris removal plan, which would be incorporated as a condition in the joint coastal permit and sovereign submerged lands authorization. An enforcement action was not initiated because the debris removal plan, if completed, would resolve the violation. On May 11, 2011, the County's application for a joint coastal permit was approved and Permit Number 0269516-001-JC was issued. See Department Ex. 6. Special Condition 5 of the permit gave the County specific instructions on how to remove the construction debris within the previously-permitted rock revetment and included a requirement that it be placed in an upland disposal site. Id. at p. 6 of 23. An attachment to the permit identified the debris and derelict structures to be removed. However, the County has never undertaken the beach re- nourishment project or completed any of the work relating to the debris removal plan. This is because the voters of the County rejected the funding mechanism for the project several years before the permit was issued. On January 9, 2012, the Department conducted an inspection of the site to document how much debris was in the revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. See Department Ex. 7. A NOV was issued after the inspection. On March 8, 2012, a follow-up inspection was conducted by the Department and County representatives. The conditions observed at that time were essentially the same as those present during the January inspection. During the March inspection, a County representative pointed out several pieces of concrete debris that he believed were the remains of an old swimming pool from an upland property that had been placed on top of the revetment after a storm event. Prior to that time, the County had taken no steps to remove this debris, and it had never notified the Department that concrete pool debris had been placed in the revetment, apparently by an unknown third party. An Amended NOV was issued on August 31, 2012, which added a Count II, relating to the area east of the permitted revetment, and identified the corrective action to be taken by the County for both Counts. The corrective action for Count I requires the County, within 60 days of the effective date of a final order in this proceeding, to remove all construction debris and other debris material, seaward of the CCCL, from and adjacent to the footprint of the previously permitted rock revetment. It further requires the County to promptly dispose of all debris at an appropriate disposal facility landward of the CCCL. If compliance with these conditions requires the County to remove the debris during the Atlantic hurricane season, the time frame to complete the removal activity shall be within 60 days after the end of that season. Except for a contention that it is not responsible for removing all of the debris in the revetment, the County does not dispute the charges in Count I. See Stip., ¶ 7.a. In an effort to limit its liability, the County points to language in a 1986 DNR Final Order, which states in part that "loose rock and rubble debris" was placed in the revetment footprint by DOT "on several occasions" in the 1970s. Department Ex. 2, ¶ 9. However, a Department inspection of the site in 1996 just after the structure was rebuilt determined that there was no unauthorized debris in the footprint of the permitted revetment. The results of that inspection were not credibly disputed. The County also contends that other debris may have been placed in or on top of the revetment by unknown third parties after various storm events in later years. But even if this is true, it is the responsibility of the property owner, in this case the County, to remove the debris. The County also seeks "equitable relief" on the ground it lacks the necessary finances to perform the corrective action. The County Director of Administrative Services stated that due to the recession, the property tax base has been cut in half (from $4.1 billion to $1.9 billion) between 2006 and 2011, essentially cutting ad valorem property taxes by 50 percent. The County further points out that the Federal Emergency Management Agency (FEMA) is not a source of funding to correct the violations. Several years ago, FEMA funding was available to the County on a one-time basis to either construct a bypass road for portions of Alligator Drive adjacent to the previously permitted rock revetment or to maintain the rock revetment. Based upon FEMA's recommendation, the County opted to build a bypass road, which is approximately 75 percent completed, with the remainder temporarily delayed due to pending condemnation litigation with an affected property owner. However, the County described the bypass road as being far less safe than County Road 370 because the bypass road has sharp turns, poor driving visibility, and a much smaller right-of-way (52 feet versus 80 to 100 feet for County Road 370). In any event, FEMA funding for performing revetment-related work adjacent to County Road 370 is no longer available. Finally, the County estimates that there are "a hundred [truck] loads of material to be removed from this area," and if the debris is removed, it will "reduce the volume of protection that [the road] currently [has]" and increase the risk of the road failing. The County suggests that even if the debris is removed, it has no money to then restore the structural integrity of the revetment. If that part of County Road 370 becomes unsafe or unusable, approximately 400 homes west of the revetment will lose the only paved hurricane evacuation route from the coastline, and emergency services may not be able to quickly access the area. As discussed in the Conclusions of Law, despite these unfortunate circumstances, the financial condition of the violator is not a consideration in formulating a corrective action plan. Count II Beginning in September 2000, and continuing until at least through July 2005, the County placed material, including granite rock boulders, rock, and debris material, in a location east of the previously permitted rock revetment, seaward of the CCCL. The granite rock boulders are permitted material taken from the rock revetment. A permit for a permanent rigid coastal armoring structure has never been obtained for the placement of the authorized material, and the debris material has never been removed. The construction activity is located to the east of the previously permitted rock revetment seaward of the CCCL approximately 140 feet east of Department reference monument R-213 to approximately 80 feet east of Department reference monument R-214. To address the violations in Count II, the County has agreed that within 60 days of the effective date of a final order in this case, it will submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department requirements. All work shall be completed prior to the expiration of the permit. If a complete application is not timely submitted, or the structure is not completed prior to the expiration of the permit, the County will remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order determining that the County is liable for the violations in Count I. As corrective action, within 60 days of the effective date of a final order in this proceeding, the County shall remove the existing construction debris and other material seaward of the CCCL from within the footprint of the previously permitted rock revetment and dispose of the material at an appropriate disposal facility landward of the CCCL. If compliance with the time period requires the County to complete activities during the Atlantic hurricane season, the time frame for completing the debris removal activities is 60 days after the end of the hurricane season. It is further RECOMMENDED that, based upon the parties' agreement at final hearing, the Department also determine that the County is liable for the violations in Count II. As corrective action, within 60 days of the effective date of this Order, the County shall submit to the Department a complete application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all Department permitting rules and statutes. The County shall complete the permitted construction prior to the expiration of the permit. If the County does not submit a complete application within 60 days of entry of a final order, or does not construct the structure authorized by the permit prior to the expiration of the permit, the County shall remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan. DONE AND ENTERED this 29th day of January, 2013, 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 29th day of January, 2013.
The Issue The issue is whether disciplinary action should be taken against the contracting licenses held by Respondent, Jeffrey J. Clark, for the reasons stated in the Administrative Complaint.
Findings Of Fact Mr. Clark, doing business as JV Clark General Contractors, Inc., is a Florida State certified general contractor with license number CGC 061010, and his license as of May 2, 2008, was "current, active." He has held this license since November 16, 1999, and there is no evidence of record that any license held by him has been the subject of disciplinary proceedings. In the same capacity Mr. Clark is a Florida State certified roofing contractor, with license number CCC 1327256 and his license as of May 5, 2008, was "current, active." JV Clark General Contractors, Inc., has a Certificate of Authority as a contractor qualified business. Its license number is QB 0018745, and as of May 5, 2008, the license was "current, active." Mr. Clark is the "qualifying agent" for JV Clark General Contractors, Inc. Mr. Clark is the sole owner and is the registered agent of a business named the Affordable Door Company, Inc. (Affordable Door), which has an address of 2811 South Nova Road, Daytona Beach, Florida. The Department is the state agency charged with providing investigation and prosecutorial services to the Board. On or about August 20, 2004, Affordable Door entered into a written contract with the Sand Dollar Condominium (Sand Dollar). The contract provided that Affordable Door would sell 13 fire doors to Sand Dollar and thereafter would install the doors. In entering into this agreement, Affordable Door was engaged in contracting, as that term is used in Subsection 489.105(6), Florida Statutes. The contract did not include Mr. Clark's license number and did not contain a written notification of the Recovery Fund. The contract required Sand Dollar to pay Affordable Door a total of $13,374.40. On August 28, 2004, Sand Dollar paid $2,769 on the contract. On October 12, 2004, Sand Dollar paid $4,430.40 on the contract, and on February 1, 2005, Sand Dollar paid the balance. On December 6, 2004, Mr. Clark applied to the City of Daytona Beach Shores Building Department for a permit to perform the work contracted by Sand Dollar. The building permit application for the Sand Dollar job was made by JV Clark General Contractors, Inc., and listed an address of 2811 South Nova Road, Daytona Beach, Florida. Mr. Clark's license number, CGC 061010, was provided on the permit application. The permit, number BP2005-41, was issued on December 20, 2004. The permit called for replacing stair doors and frames within Sand Dollar. The permit was signed by Mr. Clark and was notarized. The manufacturer of the doors to be installed required that the doors have their jams filled with grout in order to meet standards set forth in the Daytona Beach Shores Building Code. However, the grouting was not accomplished. As a result, when Daytona Beach Shores Building Inspector Steve Edmunds inspected the job, he found the work to be deficient. Marlene Wuester is the association manager for Sand Dollar. She is responsible for the operation of the 57-unit building. When Ms. Wuester learned that the doors had failed the inspection, she attempted to contact Mr. Clark. She sent a letter dated April 20, 2006, to Mr. Clark at the 2811 South Nova Road address informing him that if he did not cause the doors to meet the required standards that Sand Dollar would hire another contractor to do it, and that Sand Dollar would thereafter seek damages. Mr. Clark did not respond to the letter and did not otherwise respond to Ms. Wuester's efforts to contact him. Ultimately, Sand Dollar paid Flores-Hager and Associates, Inc., $950.00 and General Mechanical Corporation $3,900.00 to bring the doors into compliance with the applicable code. Mr. Clark testified that Affordable Door was managed by Dave Randolph and that generally the company sold doors to other contractors. The contract with Sand Dollar was exceptional and even though Mr. Clark was the permittee, the installer was a man named Jim St. Louis. Mr. Clark asserted that he did not receive communications from Sand Dollar, and therefore could not respond to Sand Dollar, because his business moved from the 2811 South Nova Road address. However, as the licensed contractor, it was Mr. Clark's duty to see that the job was completed in accordance with the applicable building code.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter an order finding that Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., is guilty of Counts I through IV and Count VI, and that licenses numbered CGC 061010, CCC 1327256, and QB 0018745 be suspended until such time as Jeffrey J. Clark, d/b/a JV Clark General Contractors, Inc., pays a fine in the amount of $2,000.00 and makes restitution to the Sand Dollar Condominium Association in the amount of $4,850.00. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of July, 2008. COPIES FURNISHED: Jeffrey J. Clark JV Clark General Contractors, Inc. 2027 South Ridgewood Avenue Edgewater, Florida 32132 Arthur Barksdale, IV, Esquire Wright, Fulford, Moorhead & Brown, P.A. 145 North Magnolia Avenue Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 The Respondent is and at all times material hereto was a certified general contractor, having been issued license No. CG017743. That license is presently in inactive status. In August, 1980, the Respondent submitted an application to the Palm Beach County Construction Industry Licensing Board in order to take the examination for qualifying as a drywall contractor. A check for the required fee was submitted with the application. While the application was being processed, an official of the Board received a letter stating that the Respondent did not have the necessary experience to take the drywall examination. The Board official, Mr. Edward R. Flynn, contacted the Respondent and asked her to meet with him regarding the application. At the meeting, Respondent was confronted with the information that the experience resume, citizenship, and social security information were not true. Respondent became very tearful and asked to withdraw the application. Other than her statement that she had been a bookkeeper and done some estimating for a contracting firm, Respondent had very little to say in response to Mr. Flynn's questions. She provided no other specific information in the meeting. Mr. Flynn returned her check but did not return the application. The following information in the application was false: Her citizenship was shown on the application as a United States citizen when, in fact, she was a citizen of Canada. The social security number entered on the application was Respondent's Canadian social security number, not a U.S. social security number. The resume attached to the application reflects that Respondent worked from 1971 to 1973 as a laborer for Smith Plastering. This was not true. The resume also states that Respondent was a project supervisor for all phases of drywall, stucco, and insulation for five years. This information was false. Respondent did not work as a "project supervisor" with the listed employer, ALC Interior Systems of Florida, Inc. The application was signed by the Respondent before a notary on July 28, 1980. The Respondent also signed the resume as well as a verification of construction experience from Smith Plastering employment from 1971 to 1973. In May, 1980, Respondent filed her application with the Florida Construction Industry Licensing Board to take the State Certified Contractor's Examination. As a part of that application, the Respondent listed her experience from 1974 to May, 1980, as project supervisor supervising all phases of construction. This information was false. From 1974 to 1980, the Respondent was employed as controller of ALC Interiors. She performed bookkeeping and other financial related functions. She was not a project supervisor and did not supervise construction for ALC. The Respondent also placed her Canadian social security number on the state application. The Respondent signed the state application before a notary public on April 4, 1980. Pursuant to her state application, Respondent passed the State Certification Examination for General Contractors in October, 1980, and in February, 1981, was issued license number CG017743.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent's license as a certified general contractor be revoked. DONE and ENTERED this 20th day of July, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Mr. James Linnan 2715 East Oakland Park Boulevard Executive Director Suite 101 Construction Industry Ft. Lauderdale, Florida 33306 Licensing Board Post Office Box 2 Herbert P. Benn, Esquire Jacksonville, Florida 32202 Blank & Benn 1016 Clearwater Place West Palm Beach, Florida 33402 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
