Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for regulating vehicular access and connections to or from the State Highway System in accordance with Sections 335.18 through 335.188, Florida Statutes, known as the State Highway System Access Management Act. The property which Petitioner filed an application for an access connection to US Highway 17 (SR 35) is located on the southeast corner of the intersection of SR 35 and Sixth Street in Fort Meade, Polk County, Florida. Petitioner's property abuts the east right-of-way of SR 35, with frontage of approximately 235 feet and the south right-of-way of Sixth Street, with frontage of approximately 235 feet. SR 35 has been designated as an intrastate system route. The segment of SR 35 involved in this proceeding has been assigned an Access Management Classification of Four with a design speed of 50 miles per hour and a posted speed of 40 miles per hour . Also, this segment of SR 35 has a "non-restrictive median" as that term is defined in Rule 14-97.002(23), Florida Administrative Code. The distance between all cross streets running east and west which intersect SR 35 within Fort Meade, Florida, including Sixth Street, is approximately 440 feet. (See Petitioner's exhibit 2, Department's aerial photo of the area) Petitioner's application proposes a full movement access connection to be located south of Sixth Street on SR 35 with a connection spacing between Sixth Street and the proposed connection of 190 feet. This distance was determined by measuring from the south edge of the pavement of Sixth Street to the north edge of pavement of proposed access in accordance with Rule 14- 97.002(19), Florida Administrative Code. The centerline of the proposed connection on SR 35 is located approximately 220 feet south of the centerline of Sixth Street. Petitioner's application also proposes an access connection to Sixth Street which would give Petitioner indirect access to SR 35 through Sixth Street. The centerline of the proposed connection on Sixth Street is located approximately 135 feet east of the east curb of SR 35 presently in place. Petitioner's proposed access connection to SR 35 is located immediately north of a crest of a rise over which SR 35 traverses. Both south and north of the crest is a depression through which SR 35 traverses. The point where Sixth Street intersects SR 35 is located approximately at the bottom of the depression north of the crest. A motorist attempting to enter SR 35 from the proposed access connection would have a full view of any vehicle moving north through the depression to the south of the crest or moving south through the depression to the north of the crest. A motorist attempting to enter SR 35 from the east on Sixth Street would have only a partial view of a vehicle moving north through the depression to the south of the crest but a full view of any vehicle moving north through the depression north of the crest. Both Dennis Wood and Michael Tako testified that each had viewed the traffic moving north through the depression south of the crest from a point where Sixth Street intersects SR 35. They also testified that each had, from a point where Sixth Street intersects SR 35, at least a partial view at all times of the vehicles moving north through the depression south of the crest. Based on the above and their assumption that the distance between cross streets along SR 35 was 600 to 700 feet rather than approximately 440 feet as indicated in Petitioner's exhibit 2, Department's aerial photo of the area, Wood believed and Tako concluded that there was minimum clear sight distance that would allow a motorist exiting Sixth Street to cross SR 35 safely, or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound land of SR 35 safely. Because of the continuous partial view of the vehicles moving north through the depression south of the crest from a point where Sixth Street intersects SR 35 it may appear that there was minimum clear sight distance in that area. However, there is insufficient evidence to establish facts to show that a minimum clear sight distance was established because the height of the originating clear sight line above the pavement or the height of the clear sight line above the pavement at the vehicle observed, which are required to establish a minimum clear sight distance (See Department's exhibit 10), were not established. Also, the estimate of the distance between the originating point of the clear sight line and the ending point of the clear sight line at the vehicle observed was flawed due to the use of incorrect distances between the cross streets. There is insufficient evidence to show that a motorist looking south from the point where Sixth Street intersects SR 35 would have the required minimum clear sight distance as calculated by Department, as shown in Department's exhibit 10, to allow a motorist to cross SR 35 safely or turn left to enter the southbound lane of SR 35 safely or turn right to enter the northbound lane of SR 35. Presently, there are three access connections of approximately 20 feet in width on SR 35 where Petitioner's property abuts SR 35. These access connections where constructed before Petitioner had ownership of the property. However, since there will be a change in land use, these access connections will be closed if the site is developed whether this access permit is granted or denied. Petitioner plans to close two of these access connections and extend the opening to the third one if the application is approved. SR 35 is a moderate volume road with approximately 17,000 average daily trips (ADT's), increasing approximately 500 ADT's annually over the past five years. Sixth Street has approximately 100 to 150 ADT's at present with the ADT's projected to increase to approximately 300 if the site is developed and Petitioner's application for the access connection to SR 35 is denied. However, the number of vehicles entering SR 35 which constitutes traffic utilizing Petitioner's establishment will be the same no matter where this traffic enters SR 35. Without the direct access connection to SR 35 there will be problems with internal customer traffic flow and with the movement of semi-tractor trailers that Petitioner uses to make deliveries to its store. Although the present site plan design may be modified so as to utilize the indirect access to SR 35 through Sixth Street, the modification of the site plan design would create problems that would most likely result in the City of Fort Meade not approving the modified site plan design. Although using Sixth Street as an indirect access to SR 35 from the site may provide a safe ingress and egress to and from SR 35, the lack of a minimum clear sight distance notwithstanding, the Petitioner's proposed access connection would provide a much safer ingress and egress to and from SR 35 because of a better clear sightdistance. Although the indirect access to SR 35 through Sixth Street may provide safe ingress and egress to and from SR 35, the indirect access does not provide reasonable access to the site as the term "reasonable access" is defined in Rule 14-96.002(22), Florida Administrative Code. The primary purpose of limiting access to SR 35 is to provide safer conditions for vehicles utilizing SR 35.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order granting Petitioner's Connection Application Number C-16-010-90 and issuing Petitioner a nonconforming permit for the construction of the access connection to SR 35 as designed and shown in the site plan attached to the application with conditions deemed appropriate by the Department and provided for under Rule 14.96.009, Florida Administrative Code. RECOMMENDED this day 30th of October, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2794 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner in this case. Petitioner's Proposed Findings of Fact. Proposed findings of fact 1 through 16 are adopted in substance as modified in Findings of Fact 1 through 21. The Respondent elected not file any proposed findings of fact. COPIES FURNISHED: Ben G. Watts, Secretary ATTN: Diedre Grubbs Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 695 Suwannee Street Tallahassee, Florida 32399-0450 Douglas E. Polk, Jr., Esquire BROWN CLARK & WALTERS, P.A. 1819 Main Street, Suite 1100 Sarasota, Florida 34236 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue This proceeding concerns an Intent to Issue a dredge and fill permit given by the Department of Environmental Regulation ("DER") to Respondent, Edmund Burke ("Burke"), for construction of a retaining wall and wooden pile-supported bridge crossing a portion of the South Fork of the St. Lucie River in Martin County, Florida. The ultimate issues for determination are whether Petitioner has standing to challenge the proposed DER action, and if so, whether the proposed agency action complies with the requirements of Sections 403.91 through 403.938, Florida Statutes, and applicable rules.
Findings Of Fact Respondent, Edmund Burke, on January 15, 1988, filed with the Department of Environmental Regulation ("DER") application number 431441608 for a permit to construct a permanent, pile supported, wooden bridge approximately 80 feet long and 10 feet wide connecting the mainland with an island in the South Fork of the St. Lucie River in Martin County, Florida. The bridge was to span a 50 foot canal or creek ("channel") in the River. One of two retaining walls was to be located on the mainland peninsula. The other retaining wall was to be located on the island (the "initial project"). Between January 15, 1988, and April 28, 1989, the initial project was modified by Respondent, Burke, to satisfy DER concerns over potential impacts, including secondary impacts, relevant to the application. The width of the bridge was reduced from 10 feet to 6 feet. The retaining wall initially planned at the point where the bridge intersects the island was eliminated. The retaining wall on the mainland side of the bridge was relocated above mean high water. Sixty feet of the proposed bridge runs from mean high water to mean high water. An additional 10 feet on each end of the bridge is located above mean high water. The project remained a permanent, pile supported, wooden bridge (the "modified project"). The Intent to Issue, dated April 28, 1989, indicated that the modifications required by DER had been made, that the modifications satisfied DER concerns relevant to the initial project, and that DER intended to issue a permit for construction of the modified project. The elimination of the retaining wall obviated any necessity for backfill on the island. The reduction in the width of the bridge virtually eliminated the secondary impacts on the surrounding habitat, resulted in less shading of the water, and precluded vehicular traffic over the bridge. The final modification that was "necessary in order for [DER] to approve this application" was the reduction in the width of the bridge from 10 feet to 6 feet. Petitioner's Exhibit 17. DER's requirement for this final modification was communicated to Mr. Cangianelli in a telephone conversation on April 6, 1989 (Petitioner's Exhibit 18), and memorialized in a letter to Respondent, Burke, on April 14, 1989 (Petitioner's Exhibit 17). The final modification was made, and the Intent to Issue was written on April 28, 1989. Petitioner's Case. Property commonly known as Harbor Estates is adjacent to the site of the modified project. A constructed harbor and contiguous park are located within the boundaries of Harbor Estates. Both are used by residents of Harbor Estates and both are proximate to the site of the modified project. The harbor entrance and site of the modified project are located on opposite sides of a peninsula approximately 40 feet wide and approximately 125 feet long. Boats operated by residents of Harbor Estates that can navigate under the modified project need only travel the length of the peninsula, a distance of approximately 125 feet through the channel, in order to reach the harbor entrance. Boats operated by residents of Harbor Estates that cannot navigate under the proposed bridge must travel around the island, a distance of approximately 1800 feet in the main body of the St. Lucie River, in order to reach the harbor entrance. However, Petitioner presented no evidence that prior to the construction of the bridge the channel was navigable by boats not capable of passing under the bridge after the bridge was completed. Petitioner, Harbor Estates Associates, Inc., submitted no evidence to show facts necessary to sustain the pleadings in the Petition concerning the inadequacy of modifications required by DER. Of Petitioner's 26 exhibits, Exhibits 1-19, 24 and 25 were relevant to the initial project but were not material to claims in the Petition concerning the inadequacy of the modifications required by DER. Petitioner's Exhibit 20 was cumulative of DER's Exhibit 6B. Petitioner's Exhibits 22 and 26, respectively, concern a 1980 bridge permit and a Proposed Comprehensive Growth Management Plan for Martin County, Florida. Petitioner offered no expert testimony in support of the pleadings in the Petition including assertions that: the modified project will have a direct adverse impact upon water quality and the welfare or property of others; the channel is navigable by deep-draft motor vessels; the modified project will result in shoaling that will have to be corrected at the expense of Harbor Estates; the modified project will result in prohibited destruction of mangroves; or that the modified project will cause any of the other specific adverse effects described in the Petition. The testimony of fact witnesses called by Petitioner was not material to Petitioner's claims that modifications required by DER were inadequate. The testimony of Bob Nicholas was relevant to allegations of prior violations but was not dispositive of any issue concerning the adequacy of modifications required by DER. The testimony of William Burr was admitted as rebuttal testimony relevant to precedents in the general area of the modified project but failed to address the adequacy of modifications required by DER. Petitioner consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioner repeatedly attempted to establish violations of laws not relevant to the proceeding including local laws and other environmental laws. Petitioner attempted to establish issues by arguing with witnesses during direct and cross examination, and by repeatedly making unsworn ore tenus representations of fact. There was a complete absence of a justiciable issue of either law or fact in this proceeding because Petitioner failed to show facts necessary to sustain the pleadings. Petitioner presented no evidence refuting Respondent, Burke's, showing that the modifications required by DER were adequate to assure water quality and the public health, safety, or welfare, or the property of others. Evidence presented by Petitioner was not material to the issue of whether the modifications required by DER were adequate for the purposes of the law applicable to this proceeding. Therefore, Petitioner participated in this proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to needlessly increase the cost of licensing or approval of the proposed activity. Respondents' Case. The island to be accessed by the modified project is approximately 2.5 acres in area and contains mostly wetland. The island is approximately 900 feet long. The portion of the island that is beyond DER permit jurisdiction is less than 200 feet long and less than 50 feet wide. The site of the modified project is located in Class III waters. Respondent, Burke, provided adequate assurances that portions of the modified project not extending over open water will be constructed upon property owned by him. The single retaining wall to be constructed at the southeastern terminus of the modified project will be constructed landward of DER jurisdiction. The modified project permits neither the installation of water or electrical conduits to the island nor any excavation, filling, or construction on the island. Respondent, Burke, must provide notification to DER before any such activity is begun. The bridge will accommodate no vehicular traffic larger or heavier than a golf cart. Golf cart access is necessary in order to accommodate a physical disability of Respondent, Burke. The modified project employs adequate methods to control turbidity, limit mangrove alteration on the island, and limit potential collisions with manatees. Vegetation, including mangroves, will not be removed. Incidental, selective trimming of vegetation will be allowed to create access to the island. The single retaining wall to be constructed on the mainland will be located landward of mangroves. Turbidity curtains will be used during construction to minimize short term water quality impacts. The modified project requires turbidity screens to be installed if there is any indication of sedimentation. No mechanical equipment will be located on the island during construction. No boats will be moored at the site of the modified project. The modified project will cause no significant downstream shoaling or silting. The site of the modified project is located approximately 15 feet from an existing fishing platform. No significant shoaling has been associated with that platform. The impacts associated with the modified project are similar to the impacts associated with single family docks in the area. No significant shoaling has been associated with such docks. The modified project is not a navigational hazard. The elevation is sufficient to accommodate small boats, canoes, and row boats. Reflective devices are required to alert night boat traffic of its presence. There is adequate clearance under the bridge to prevent obstruction. DER reviewed all applicable rules and criteria in considering the modified project. The modified project will have no adverse effect upon public health, safety or welfare, or the property of others. The modified project will not adversely impact the conservation of fish, wildlife, or their habitats. The modified project will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling. The modified project will not adversely impact fishing value or marine productivity in the area. The modified project will have no adverse impact upon recreational values in the vicinity. The modified project was reviewed in a manner that is customary for similar projects reviewed by DER. It is common practice for DER employees, as they did in this case, to rely upon opinions of other DER professionals in formulating an intent to issue. Other projects within DER jurisdiction in the general geographic area of the modified project and within the same region were considered in DER's review process. Other docks and marinas have been constructed and are proposed for construction within the South Fork of the St. Lucie River. Bridges including pedestrian bridges have been and are proposed to be constructed in Martin County. DER did not require a hydrographic study because the modified project was considered a minor project. DER review took into account the intended future use of the island property and DER's past experience with Respondent, Burke. As part of its review, DER reviewed a conceptual bridge to a single family residence on the island which would not require any fill or construction of retaining walls. In addition, DER considered previous violations on the island under Florida Administrative Code Rules 17-4.070, 17-4.160, and 17-4.530 in connection with an earlier permit that expired before the initial project was begun. Respondent, Burke, provided reasonable assurances that he is the owner of the site of the proposed project. Respondent, Burke, signed DER's property ownership affidavit and submitted a survey. DER's Intent to Issue does not authorize any construction in any area within the jurisdiction of DER other than the modified project. The Intent to Issue constitutes compliance with state water quality standards. DER has not received any requests for a jurisdictional determination in the general geographic area of the modified project. No enforcement action has been initiated by DER or at the request of a third party against Respondent, Burke, for alleged violations of DER rules.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order on the merits issuing the requested permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of April, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 1990. APPENDIX Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Although most of Petitioner's proposed findings were cast in the form of "fact", they were in substance argument and rejected accordingly. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in part in Finding 1 Findings as to ownership are rejected as beyond the jurisdiction of the undersigned. Finding as to the late filed exhibit is rejected as irrelevant. 2-4, 10-12, Rejected as either irrelevant 16, or not supported by the record. 5 and 6, 37, 40 Rejected as unsupported by 42 the record. 7, 8, 15 Rejected as irrelevant 17, 21-29 and immaterial 9, 13, 14, 18-20 Rejected as immaterial 30-33, 35 and 36 37(a), 38, 39, 41, 48 20(A) Rejected as irrelevant and immaterial except the last sentence is included in Finding 13 34 Included in Finding 12 Rejected as not supported by the record, hypothetical and immaterial. Rejected as not established by clear and convincing evidence. Respondent, Burke, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Respondent. Burke's, Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 15 and 16 Included in Finding 1 17, 26, 27 Included in Finding 2 18, 48 Included in Findings 15 and 16 19, 30, 31, 42 Included in Finding 13 20, 21, 44 Included in Findings 4 and 14 22, 23, 25, 32 Included in Finding 17 24 Included in Finding 16 25, 36-38 Included in Finding 17 Included in Finding 18 Included in Finding 3 Included in Finding 10 Included in Finding 19 35, 39, 43 Included in Finding 20 40, 41 Included in Finding 11 45-47 and 49 Included in Finding 16 51 and 52 Included in Findings 6-8 54 Included in Finding 5 and 8 50 and 53 Rejected as irrelevant and immaterial Respondent, DER, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2 Included in Findings 1 and 2 3 Included in Finding 10 4 and 5 Included in Finding 16 6, 9 Included in Finding 2 7 and 8 Included in Findings 9 and 11 10 Included in Finding 13 11 Included in Finding 15 Included in Finding 17 and 14 Included in Finding 16 COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia E. Comer Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Patricia V. Bartell Qualified Representative 615 S.W. St. Lucie Street Stuart, FL 34997 J. A. Jurgens Jones, Foster, Johnson & Stubbs, P.A. 505 South Flagler Drive West Palm Beach, FL 33402
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2012.
The Issue The issues in this case are: (1) whether proposals by Richard and Mildred Olson to widen an existing bridge (designated Bridge 1) and construct two new pedestrian bridges (designated Bridges 2 and 4) across Bessey Creek in Martin County, Florida, qualify for the Noticed General Permit established by Rule 62-341.475; and (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact Richard and Mildred Olson own property in Rustic Hills Phase III in Martin County, Florida. The Olsons own lots 191, 192, 195, 212, 213, and 214. Each lot is approximately two acres in size. The Olson home is on lot 213, and a rental home is on lot 195. On their property, the Olsons raise miniature goats, guinea hens, and peacocks; they also have ducks, geese, chickens, and dogs. Bessey Creek winds through Rustic Hills and the Olsons' lots. The Olsons propose to use DEP's NGP for Minor Activities established by adoption of Rule 62-341.475 to widen one existing bridge and construct two others for access to their property across Bessey Creek. Bessey Creek is a tributary of the St. Lucie River, through man-made Canal 23. Navigating upstream on Bessey Creek, a boat would have to pass under the Murphy Road Bridge, which is 9 feet, one inch above mean high water (MHW), just before reaching the first of the four bridges involved in this case, Bridge 1. Bridge 1 is a steel span bridge (with no pilings in the water) that connects two portions of lot 191, which is split by the creek. The Olsons propose to widen existing Bridge 1. It is not clear from the evidence whether pilings will be required to widen Bridge 1. But it seems clear that a centerline stream clearance (horizontal width) of 16 feet and a bridge height above mean high water (MHW) (vertical clearance) of 9 feet will be maintained. Proposed pedestrian Bridge 2 is the next bridge upstream, at a point where the creek is only approximately 24 feet wide from MHW to MHW. It is designed to be a 192 square foot piling-supported bridge, with an 8-foot wide by 24-foot long walkway. To support Bridge 2, sets of pilings will placed in the creek bed so as to maintain a centerline stream clearance of 16 feet. The proposed vertical clearance for Bridge 2 is 8 feet above MHW. Existing Bridge 3, the next upstream, is at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 3 is a wooden bridge approximately 25 years old. It connects lots 192 and 193 to lot 191. The Olsons use existing Bridge 3 on a daily basis. Bridge 3 was built to span the creek; later, two sets of wooden piles were added. There is a centerline stream clearance of 13 feet between the piles. Vertical clearance is 8 feet above MHW. Proposed pedestrian Bridge 4, the farthest upstream, is designed in the same manner as proposed pedestrian Bridge 2. It is located at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 4 will connect lots 195 and 212. Navigability Proposed pedestrian Bridges 2 and 4 are designed to have the same 8-foot vertical clearance as existing Bridge 3; they are designed to have three feet more horizontal clearance than existing Bridge 3. Neither they nor widened Bridge 1 will restrict navigation as much as existing structures, natural conditions (including numerous fallen trees, underwater snags and low, overhanging vegetation), and docked boats. The United States Coast Guard and the Florida Fish and Wildlife Conservation Commission (FFWC) concur that the bridges would not have any deleterious effect on the navigation in this area of Bessey Creek. While not specifically alleging impedance of navigation, Petitioner alleged that existing Bridges 1 and 3 are lower than measured by the Olsons' environmental consultant. But there was no evidence to support such a finding. Meanwhile, the Olsons' consultant explained how he determined the vertical clearance of those bridges above MHW by measurements adjusted for MHW using NOAA tide charts. Even if existing Bridges 1 and 3 had less vertical clearance than determined by the Olsons' consultant, Bridges 2 and 4 are designed to have the same vertical clearance as the consultant determined Bridge 3 to have. For that reason, even if the consultant's determinations were incorrect, the vertical clearances of Bridges 2 and 4 are designed to be the same as the vertical clearance of Bridge 3, and the vertical clearance of Bridges 2 and 4 will not impede navigation any more than Bridge 3. Flooding Bessey Creek is a typical tidal creek. It has low volume and low velocity. Being influenced by tidal ebb and flow, its flow is not continuously downstream except during and just after times of high precipitation, such as hurricanes. Under these conditions, build-up of debris around pilings of these bridges would not be expected, and none was observed around at the existing bridges. The chances of vegetation or organic matter building up over time in the area of these bridges to create a beaver dam effect and cause flooding are small. The proposed new pedestrian bridges have four pilings, which is typically less than a single-family dock. The pilings of a single-family dock are closer to the shoreline and, particularly with a boat alongside, would have more potential to trap debris and cause flooding than the proposed bridges. The same can be said of the fallen trees and low, overhanging vegetation existing under natural conditions in Bessey Creek. The proposed bridges are not expected to have an adverse impact of a significant nature with respect to off-site flooding. Petitioner did not present any expert testimony regarding allegations of off-site flooding potential. Dan White testified as a lay person that flooding occurs in the area during times of high precipitation and that Petitioner was concerned that the proposed bridges would exacerbate those conditions. But, while the evidence was clear that flooding is a condition to be expected under certain conditions in low-lying areas like Rustic Hills Phase III, White failed to make any causal connection between existing periodic flooding and the bridges, existing or proposed. Improper Purpose Petitioner's request for hearing, by letter dated November 16, 2000, thanked DEP for "this opportunity to contest the granting of a Noticed General Permit to the Olson's [sic]" and also requested "an Administrative Review to ensure your department has all the information needed to make a fair decision regarding this matter." It also requested: "Since we are a small community, I hope the Department will review this petition in light of the author's lack of familiarity with the specific form and format used by the environmental consultants and those who work with you on a regular basis." Petitioner "respectfully submit[ted] the following information which is required to dispute the Department's actions and to request an Administrative hearing if necessary." In response to Petitioner's letter, DEP referred the matter to DOAH. Apparently, Petitioner (and the other parties) did not receive a copy of the Initial Order. Petitioner, which was not represented by counsel at the time, failed to comply with the Amended Initial Order entered on March 23, 2001. But apparently neither did the Olsons, who also were not represented by counsel at the time, or DEP, which was. The Olsons complained by letter filed April 26, 2001, that Petitioner had not contacted them. But there was no indication or evidence that, up to that point in time, the Olsons attempted to contact Petitioner or DEP, or that DEP attempted to contact Petitioner or the Olsons, in response to the Amended Initial Order. The Joint Response to Initial Order filed by the Olsons and DEP on May 1, 2001, recited that Petitioner's contact person-of-record, Treasurer Jim Fyfe, "no longer was associated with Rustic Hills" and that Petitioner's President, Dan White, was "out of town and could not be reached." Based on the Joint Response to Initial Order filed by DEP and the Olson's, final hearing was scheduled for May 24, 2001. The Order of Pre-Hearing Instructions entered along with the Notice of Hearing on May 3, 2001, required that the parties exchange witness lists and copies of exhibits and file their witness lists by May 14, 2001. Petitioner complied with the requirement to file a witness list and also included a list of exhibits. There was no indication or evidence that Petitioner did not exchange exhibits as well. The Order of Pre-Hearing Instructions also required: "No later than May 18, 2001, the parties shall confer with each other to determine whether this cause can be amicably resolved." When the Olsons' environmental consultant, Bruce Jerner, went to Dan White's home on May 14, 2001, to provide him a copy of the Olsons' exhibits, he invited White to discuss settlement in accordance with the Order of Pre-Hearing Instructions. White responded to the effect that, even if Petitioner did not have a strong case, Petitioner preferred to go to hearing, and White did not want to mediate or discuss settlement with Jerner. At that point, Jerner indicated that he would be sending White a letter confirming the Olsons' attempt to comply with the Order of Pre-Hearing Instructions. The letter dated the next day requested "an informal conference to determine whether the above referenced case can be amicably resolved and avoid hearing proceedings." Significantly, there was no indication or evidence that DEP complied with the Order of Pre-Hearing Instructions in any respect. It appears that DEP distanced itself from the dispute between Petitioner and the Olsons, preferring to allow them to settle or litigate as they saw fit. In view of DEP's noncompliance, DEP at least certainly may not rely on Petitioner's noncompliance as a ground for an award of attorney fees and costs. In addition, while DEP's noncompliance does not excuse Petitioner from complying, it helps put Petitioner's actions in context and is relevant on the question whether Petitioner's noncompliance was evidence of improper purpose. In this regard, White testified to his belief that he had complied with all ALJ orders but did not "know why I would be obligated to respond to the consultant for Mr. Olson with regard to hearing or any other matters." While DEP and the Olsons in part cite Petitioner's failure to follow prehearing procedures, they primarily rely on the weakness of Petitioner's presentation at final hearing and posthearing efforts as evidence of improper purpose. But this evidence must be evaluated along with other factors resulting in the weakness of Petitioner's case. Not only did White misinterpret the Order of Pre- Hearing Instructions, the evidence indicated that he was unfamiliar with the administrative process in general and also was confused about the difference between the administrative hearing scheduled for May 24, 2001, and the County permitting proceedings on the bridges which also were on-going. White indicated repeatedly during final hearing that he and Petitioner had just recently learned more about distinctions between the administrative and County permit proceedings. As a result, White was beginning to recognize that several issues Petitioner had attempted to raise in this administrative proceeding may be relevant to on-going County permit proceedings but not this administrative proceeding. When it was established and explained at final hearing that DEP had no jurisdiction to require demolition or repair of existing bridges in this proceeding, White agreed to withdraw that part of Petitioner's request for relief. When it was established and explained that issues Petitioner raised relating to the "public interest" test under Rules Chapter 21-18 were premature, White did not object to those issues being dropped. Later, when Petitioner attempted to raise water quality issues relating to excrement from Olson livestock crossing these bridges, and it was ruled that no such issue was raised in Petitioner's request for hearing, White accepted the ruling. Final hearing proceeded on the only remaining issue specifically raised by Petitioner (alleged off-site flooding) (together with navigability--an issue addressed in the Olsons' presentation but not raised in Petitioner's request for hearing). To use White's words, Petitioner did not "have a very sophisticated presentation." Petitioner had no expert testimony, and White's lay testimony did not make a causal connection between flooding and the bridges. After the presentation of evidence, Petitioner did not withdraw its request for hearing in view of the evidence presented; but, in fairness, neither was Petitioner asked to do so. Petitioner did not order a Transcript, or a copy after the Olsons ordered a Transcript, and did not file a PRO. It is fairly clear from the evidence that Petitioner did not participate in this proceeding primarily to cause unnecessary delay. Even if Petitioner had never requested a hearing, the Olsons did not have all of the authorizations required of DEP for their proposals. In addition, County permits apparently also are required. It seems reasonably clear that, had Petitioner retained a competent expert to evaluate its case, the expert probably would have advised Petitioner that it would not be able to make a causal connection between flooding and the bridges. Had Petitioner retained counsel prior to final hearing, counsel probably would have advised Petitioner not to proceed with its request for hearing because, without a causal connection between flooding and the bridges, Petitioner would not be able to prevail. But there was no indication or evidence that Petitioner had and disregarded the benefit of professional advice. Under the totality of these circumstances, it was not proven that Petitioner's participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the Olsons' applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: denying Petitioner's challenge to the propriety of the Olsons' use of the NGP for minor activities for their proposals; authorizing the Olsons to use the NGP for their proposals (DEP File Nos. 43- 0137548-002 and 43-0158123-002) subject to the design criteria limitations and other conditions in the applicable general permit rules; and denying the Motion for Attorney's Fees from Petitioner under Section 120.595(1). Jurisdiction is reserved to enter a final order on the part of the Motion for Attorney's Fees seeking sanctions under Section 120.569(2)(e). DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Dan White, President Rustic Phase III Property Owners Association 3337 Southwest Bessey Creek Trail Palm City, Florida 34990 Tim Morell, Esquire 1933 Tom-a-Toe Road Lantana, Florida 33426 Elizabeth P. Bonan, Esquire Cornett, Googe, Ross & Earle, P.A. 401 East Osceola Street Stuart, Florida 32991 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
The Issue At issue is whether an order recommending denial of the subject permits and variance should be rendered.
Recommendation Based on the foregoing statement of the case and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order reversing Monroe County's decision to issue the subject permits and variance. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29 day of January 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of January 1992.
The Issue The issue to be determined is whether Bradford County meets the criteria listed in Florida Administrative Code Rule 62-330.051(4)(e) for a road repair exemption.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Dr. Still resides at 14167 Southwest 101st Avenue, Starke, Florida. That property abuts work that was performed pursuant to the Exemption. The District is a water management district created by section 373.069(1), Florida Statutes. It has the responsibility to conserve, protect, manage, and control the water resources within its geographic boundaries. See § 373.069(2)(a), Fla. Stat. The District, in concert with the Department of Environmental Protection, is authorized to administer and enforce chapter 373, and rules promulgated thereunder in chapter 62-330, regarding activities in surface waters of the state. The District is the permitting authority in this proceeding and issued the Exemption to the County. The County is a political subdivision of the State of Florida. The County is responsible for keeping county roads and structures within its boundary in good repair and for establishing the width and grade of such roads and structures. §§ 334.03(8) and 336.02(1)(a), Fla. Stat. 101st Avenue, a dirt road, was constructed decades ago and runs in a general north/south direction for several miles. It was in existence, publicly used, and under County maintenance long before January 1, 2002. Dr. Still acknowledged that when he purchased his property in 1996, the road was publicly used and was being maintained by the County. The centerline of 101st Avenue has existed in its current position as long as Mr. Welch, the Bradford County surveyor, has been familiar with the property, since at least 1996. The County owns and is allowed to use a 60-foot right-of-way (“ROW”) extending 30 feet to either side of the centerline. The driving surface of 101st Avenue has consistently been from 20 to 22 feet in width, with drainage structures extending further into the ROW. The evidence was convincing that 101st Avenue was regularly maintained or repaired by the County for more than seven years prior to the Exemption. The evidence was equally convincing that, during that period, the width of the road that actually has been maintained or repaired is substantially -- if not identically -- the same as the width of 101st Avenue after the road repairs under the Exemption were completed. 101st Avenue was, prior to the exempt road repair work, “very wet” during rainy periods, and cars and trucks would routinely get stuck in the mud. Mr. Welch testified credibly that 101st Avenue was “a mess” even before the events that led to the work covered by the Exemption. It is reasonable to conclude that the driving surface of 101st Avenue may have shifted by a matter of feet in either direction over the years prior to the exempt road repairs, which would have generally been the result of persons driving off of the driving surface to escape impassable areas, and of the imprecision inherent in grading a dirt road with a large motor grader. The evidence established that the County has maintained 101st Avenue at a location as close to the established centerline as possible, and has not intentionally moved or realigned 101st Avenue from its historic location. Mr. Welch was very familiar with 101st Avenue, having used it numerous times, including during the period leading up to the events that precipitated the road repair work at issue. He testified to two surveys he performed of the area, first in 1996, and again in the vicinity of the Still property in May 2017. He testified that 101st Avenue was under County ownership and maintenance prior to his first survey in 1996. Photographic evidence offered by Dr. Still showed 101st Avenue to be significantly degraded near his property for several years leading up to 2017. Turbidity of the waters passing alongside and under 101st Avenue was “a long ongoing issue with this road,” dating back to at least 2015. 101st Avenue “was in pretty poor shape” in January 2017. Cars would routinely go around wet areas on the driving surface and possibly onto Dr. Still’s property. That gave the appearance of a change in the eastern ROW. Over a period of years prior to the Exemption work, the ROW may have crept eastward as the road was graded, ditches were maintained, and residential traffic diverted around impassable areas. The shift could have been as much as 10 to 15 feet, but the evidence establishing such was neither precise nor compelling. However, even if the ROW shifted over time, the movement was not the result of intentional operation and maintenance by County staff, but was a gradual, unintentional movement over time. Such a gradual shift is common with dirt and limerock roads. Furthermore, the alignment of the travel surface was stable, and was always within the 60-foot ROW, although the stormwater structures may have gone beyond the ROW. In August 2017, a series of storm events caused 101st Avenue to be flooded. Dr. Still testified that the existing road and ditches and most of the areas adjacent to his property were “destroyed” by continued public use after the August 2017 rain event. He believed there was no way to ascertain the alignment of 101st Avenue. Around September 10, 2017, Hurricane Irma impacted the County, causing substantial flooding and damaging numerous dirt and limerock roads in the County, including 101st Avenue. 101st Avenue was partially damaged from flooded conditions, and rendered completely impassable at places along its path, which led motorists to drive off of the established roadway onto adjacent properties to get through. The diversion of traffic off of the road surface was due to the personal decisions of the public using the road, and was not the result of any direction, operation, or maintenance by County staff. 14 After Hurricane Irma, Governor Scott issued emergency orders that allowed local governments to undertake necessary repairs to roadways. The County issued similar emergency orders.1 In November 2017, Mr. Welch performed a survey to establish the alignment of the road. 101st Avenue was partially repaired consistent with the survey and pursuant to the emergency orders, with the work beginning in December 2017. As the work to repair 101st Avenue was proceeding, Dr. Still asserted that the ROW encroached onto his property. He and Mr. Welch walked the property line, noted that the ROW appeared to extend across a fence installed on the west side of 101st Avenue, and staked the disputed area. Though the County believed it was working within its ROW, it decided, more as a matter of convenience to avoid the time and expense of litigation, to purchase the disputed area. Thereafter, on January 5, 2018, the County purchased 1.78 acres of property from Dr. Still, which was incorporated into the County ROW.2 The purchase of the property, and establishment of the undisputed ROW, was completed well before the December 23, 2019, filing of the Petition. The travel surface of the road remained within the prescriptive and historical ROW. The “footprint” of 101st Avenue was the same before and after the road repair work. Dr. Still admitted that the road had not “physically moved.” However, he believes that the County’s use of the 1 Since the Exemption work was largely (and lawfully) performed under the emergency orders, the County’s Exemption application was filed after the repair work had begun on 101st Avenue, and is considered an after-the-fact application. The application for the Exemption was originally filed pursuant to rules 62-330.051(4)(b) and (e). The County thereafter withdrew its request for an exemption pursuant to rule 62-330.051(4)(b), and limited its Exemption to rule 62-330.051(4)(e), which establishes the standards at issue in this proceeding. The District’s December 10, 2019, proposed agency action granted the Exemption for resurfacing the entirety of the length of 101st Avenue. 2 The evidence was not sufficient to establish that the ROW actually encroached onto Dr. Still’s property. It is equally plausible that the fence encroached into the 101st Avenue ROW. Nonetheless, the issue was -- or should have been -- resolved when the County agreed to pay Dr. Still to extinguish any plausible claim to the property in dispute. 1.78 acres of purchased property for the ROW constitutes a realignment of 101st Avenue. From an engineering perspective, as long as a road surface is within an established ROW, and there has been no intentional change in its direction or trajectory, the road is not “realigned.” The evidence established that 101st Avenue remained within its established ROW, and there was no intentional change in its direction or trajectory from the repair work. The work performed under the exemption involved grading 101st Avenue along its entire length, and applying asphalt millings and a sealant to stabilize the travel surface. The asphalt millings placed on the 101st Avenue travel surface were applied on top of the “as-is” existing limerock. The millings provided structure and stability to the travel lanes, and eliminated erosion and the large muddy bogs that were a feature of the road during the rainy season and after storms. There was no persuasive evidence that the millings materially raised the height of the road travel surface. Mr. Rischar testified that 101st Avenue, after the road repair work, is now in good condition and intact. The asphalt millings are not “loose” but are bound together. The work stabilized the roadbed, provided structural integrity, and improved water quality as compared to a simple graded road. His testimony is accepted. Dr. Still produced several photographs depicting a small pile of dirt near a roadside ditch near the drainage culvert under 101st Avenue. The pile pre-dated the Exemption work. Ms. Diaz testified that the mounds had been “taken care of,” and they do not appear in any post-Exemption photographs. There was no evidence of any excavated material having been deposited at or near the Still property from the exempt road repair work. As part of the Exemption work, drainage structures were incorporated to receive and convey stormwater from the road surface. Rule 62- 330.051(4)(e)5. requires that work performed under a road repair exemption incorporate “[r]oadside swales or other effective means of stormwater treatment.” The evidence was not sufficient to demonstrate that the stormwater structures incorporated along 101st Avenue met the stringent criteria for “swales” as set forth in the Applicant’s Handbook, Volume II, §§ 5.5.1 and 5.5.2. However, the testimony was convincing that the drainage work incorporated into the road repairs was an “other effective means of stormwater treatment.” Dr. Still’s testimony as a “citizen scientist” was not sufficient to overcome the expert testimony offered by the County and the District. During the initial phases of the work, when the County was acting under the post-Irma emergency orders, the County had not installed silt fences. Dr. Still complained to the County, and silt fences and turbidity curtains were installed. Dr. Still admitted that they “functioned fairly well.” The silt fences and turbidity curtains were installed prior to the December 23, 2019, filing of the Petition. The turbidity curtains and silt screens met best management practices (“BMPs”). BMPs are generally construction-related practices, and are not designed for the “operation” of a facility after conditions have stabilized. Compliance with BMPs is intended to demonstrate compliance with water quality standards. Ms. Carr directed the County to remove the turbidity control curtains prior to her last inspection since the area had stabilized. While photographic evidence depicted differences in the appearance of water in the roadside ditches from that flowing under the road from forested areas to the west, the photographs were not sufficient to establish violations of state water quality standards for turbidity. A turbidity violation is, by definition, a reading of 29 Nephelometric Turbidity Units (NTUs) over background as measured by a meter. Fla. Admin. Code R. 62-302.530(69). Ms. Carr testified credibly that one cannot gauge water quality from a picture, and that the photographs she took on her December 20, 2018, site visit did not depict the conditions “in real life.” District employees who visited the area, including Ms. Carr, saw nothing that raised water quality concerns. The appearance of the water in photographs is not sufficient to demonstrate that the County failed to control turbidity, sedimentation, and erosion during and after construction to prevent violations of state water quality standards due to construction-related activities. Dr. Still was critical of the District inspectors for failing to take turbidity samples using calibrated meters. However, he did not take such samples himself, and was not able to offer proof of any violation of water quality standards due to the exempt road repairs. Rule 62-330.050(9)(b)5., read in conjunction with rule 62- 330.051(4)(e)8., provides that the “construction, alteration, and operation” of exempt road repair work shall not “[c]ause or contribute to a violation of state water quality standards,” and that “[t]urbidity, sedimentation, and erosion shall be controlled during and after construction to prevent violations of state water quality standards.” The rules establish that the standards and conditions apply to the exempt work being performed, and not to conditions in the area that may have existed prior to the exempt work. The issue of turbidity, though discussed at length during the hearing, was resolved conclusively when Dr. Still admitted that turbidity was not made worse by the road repairs. Furthermore, a preponderance of the evidence established that the structure and stability provided to the travel lanes improved the turbidity and sedimentation that pre-dated the road repair, and reduced erosion of the road, not only by the repair of the road itself, but by eliminating the need to drive off of the road surface to avoid and bypass impassable areas. The Exemption work included the replacement of a culvert under 101st Avenue. At some time between January 8, 2018, and January 19, 2018, an existing 30-inch culvert was removed and replaced with two 24-inch culverts. Dr. Still complained that the 24-inch culverts were resulting in flooding of his property. Therefore, on or about December 17, 2019, prior to the December 23, 2019, filing of the Petition, the 24-inch culverts were removed, and a 30-inch culvert was installed to match the size and capacity of the previously existing culvert, and return the area to its pre-existing condition. There was no evidence that the current 30-inch culvert has resulted in any flooding. Since the 30-inch culvert reestablished the pre-Exemption condition, a strong inference is drawn that the exempt work will not “cause adverse water quantity or flooding impacts to receiving water and adjacent lands.” Rather, the evidence establishes that water quantity impacts, if any, were in existence prior to the exempt road repairs.3 The work was not related to the alteration or maintenance of a “culverted roadway crossing,” despite the culvert work. Thus, the previous inclusion of rule 62-330.051(4)(b) as a basis for the County’s Exemption request was withdrawn. The District accepted that withdrawal, and its notice of Exemption did not include any reference to the culvert. As indicated in the Preliminary Statement and the amended disposition of the Motion in Limine, the road repair Exemption does not explicitly address culvert replacement. Therefore, any allegation that the replacement of the culvert was a violation of District permitting standards must be taken up with the District as an exercise of its enforcement discretion, and is not an issue in this proceeding. Dr. Still produced photographs that were described as depicting “sediment” that was deposited along a “canal” on his property between 101st Avenue and a cleared utility easement. To the extent the photographs depicted sediment as described, which was not visually apparent, they were not sufficient to prove when any such sediment was deposited, or whether the sediment was related to the road repairs performed under the Exemption. 3 Again, simplistically, work performed under the road repair exemption is not designed to make pre-existing water quality and water quantity issues better, it just cannot make those conditions worse. Mr. Rischar testified convincingly that there was no scientific data to support a determination that there are water quality issues, including turbidity, at the roadway. Dr. Still produced photographs of the post-Exemption condition of 101st Avenue with several comparatively tiny depressions that, if never maintained, would presumably develop into potholes. Despite the nascent depressions, the road appeared to be vastly improved from its condition prior to the repairs, as evidenced by Dr. Still’s pre-Irma photographs. Mr. Rischar testified credibly that any roadway, from the least developed dirt road to the most highly developed interstate highway can, and does, develop holes in the travel surface over time. For that reason, governmental bodies, including the County, maintain roads, including 101st Avenue. The photographs provide no support for a finding that the exempt road repairs have resulted in any violation of a standard in either rule 62-330.051(4)(e)8. or rule 62- 330.050(9)(b)5. The evidence established that 101st Avenue was regularly maintained and repaired by the County for more than seven years prior to the Exemption, and that the road repairs did not realign, expand the number of traffic lanes, or alter the width of the existing road. The evidence established that the work performed under the Exemption did not realign 101st Avenue. The repairs to 101st Avenue included work reasonably necessary to repair and stabilize the road using generally accepted roadway design standards. The evidence demonstrates that no excavated material related to the work under the Exemption was placed at or near Dr. Still’s property or, for that matter, anywhere along 101st Avenue. The evidence established that the repairs to 101st Avenue did not adversely impound or obstruct existing water flow, cause adverse impacts to existing surface water storage and conveyance capabilities, or otherwise cause adverse water quantity or flooding impacts to receiving waters and adjacent lands. The evidence was not sufficient to establish that the road repair work caused or contributed to a violation of state water quality standards. Ultimate Findings of Fact The greater weight of the competent substantial evidence establishes that 101st Avenue was in existence long before January 1, 2002, has been publicly used since that time, and has been regularly maintained and repaired by the County for more than seven years prior to the Exemption. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that during its relevant period of existence, the width of 101st Avenue that actually has been maintained or repaired is substantially -- if not identically - - the same as the width of 101st Avenue after the road repairs under the Exemption were completed. The work performed under the Exemption did not realign or expand the number of traffic lanes of 101st Avenue. The repairs to 101st Avenue included work reasonably necessary to repair and stabilize the road using generally accepted roadway design standards. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that no excavated material related to the work under the Exemption was placed at or near Dr. Still’s property or, for that matter, anywhere along 101st Avenue. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the repairs to 101st Avenue did not adversely impound or obstruct existing water flow, cause adverse impacts to existing surface water storage and conveyance capabilities, or otherwise cause adverse water quantity or flooding impacts to receiving waters and adjacent lands. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that the road repair work incorporated effective means of stormwater treatment, and did not cause or contribute to a violation of state water quality standards. Evidence to the contrary was not persuasive. The greater weight of the competent substantial evidence establishes that turbidity, sedimentation, and erosion were controlled during and after construction, and continue to be controlled, to prevent violations of state water quality standards. Erosion and sediment control BMPs were installed and maintained in accordance with applicable guidelines and specifications. Evidence to the contrary was not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Suwannee River Water Management District enter a final order: Approving the December 10, 2019, Environmental Resource Permit (ERP): Exemption, ERP-007-233697-2, determining that activities related to the repair of Southwest 101st Avenue in Bradford County, Florida, met the criteria to be an exempt activity pursuant to rule 62-330.051(4)(e); and Taking such action pursuant to section 120.595(1) as it deems appropriate. The undersigned retains jurisdiction to determine the award of costs and attorneys’ fees pursuant to section 120.595(1)(d), if the final order makes such an award and the case is remanded by the Suwannee River Water Management District to DOAH for that purpose. DONE AND ENTERED this 19th day of November, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 19th day of November, 2020. COPIES FURNISHED: George T. Reeves, Esquire Davis, Schnitker, Reeves and Browning, P.A. Post Office Drawer 652 Madison, Florida 32341 (eServed) Paul Edward Still 14167 Southwest 101st Avenue Starke, Florida 32091 (eServed) Frederick T. Reeves, Esquire Frederick T. Reeves, P.A. 5709 Tidalwave Drive New Port Richey, Florida 34562 (eServed) William Edward Sexton, County Attorney Bradford County, Florida 945 North Temple Avenue Post Office Drawer B Starke, Florida 32091 (eServed) Hugh L. Thomas, Executive Director Suwannee River Water Management District 9225 County Road 49 Live Oak, Florida 32060 (eServed)
Findings Of Fact The Respondent. The Respondent, Gerald S. Rehm, served as Mayor of the City of Dunedin, Florida, from 1965 to 1972. The Respondent served in the Florida Senate from 1980 to 1984. Among other duties, the Respondent served on the Senate Transportation Committee. The Respondent served as a Florida state representative from November 4, 1986, through November 6, 1990. (Stipulated Fact). At all times relevant to this proceeding, the Respondent served as a public official. During the time that the Respondent served as a Florida state representative, he served on the House Transportation Committee and House Appropriations Committees. At some time during his service as a Florida state representative the Respondent asked to be removed from the House Transportation Committee. This request was granted. The Top of The Bay Road Improvement Task Force. The Top of the Bay Road Improvement Task Force (hereinafter referred to as the "Task Force"), was a private, not-for-profit organization incorporated on June 14, 1985. It was dissolved in late 1990. (Stipulated Fact). The original and primary purpose of the Task Force was to expedite the widening of State Road 580/584 (hereinafter referred to as the "580/584 Project"). The Task Force endeavored to obtain donations of right-of-way along the 580/584 Project corridor to accomplish its goal. Over time, the purpose of the Task Force expanded to include the tracking of road development in northern Hillsborough and Pinellas counties, to the extent that other roads and projects impacted on the 580/584 Project. (Stipulated Fact). The 580/584 Project included roads of Hillsborough and Pinellas Counties and the State of Florida. Therefore, Hillsborough and Pinellas Counties and the State were involved in the 580/584 Project. The Task Force hoped to insure that all three government bodies were communicating about the 580/584 Project. The Task Force believed that the 580/584 Project would not be completed until as late as the year 2010. By providing coordination and obtaining donations of right-of-way along the 580/584 Project corridor, the Task Force hoped to facilitate the completion of the 580/584 Project sooner. The Task Force was aware that if needed right-of-way along the 580/584 Project corridor was donated, it could take only a day to complete the donation instead of taking as long as two years to acquire the same right-of-way by eminent domain. Acquiring right-of-way along the 580/584 Project corridor by eminent domain was inconsistent with the purpose of the Task Force. The poor condition of highways 580 and 584 was adversely affecting business interests along these highways. The Task Force was formed to correct this problem as soon as possible. The completion of the 580/584 Project was also necessary for some land owners along the 580/584 Project corridor to be able to obtain DRI (Development of Regional Impact) permits necessary to develop their property. When first conceived, it was believed that the Task Force would be needed only for a short period of time. The Task Force was continued beyond the period of time originally contemplated because it was believed that the government agencies involved would believe that they were being "watched" if the Task Force remained active. The Task Force received most of its funding from large land owners and developers. (Stipulated Fact). About 12 to 15 major landowners, businesses and developers provided most of the Task Force's funding. The goals of the Task Force were the goals of those who contributed the Task Force's funds. The Respondent's Involvement with the Task Force. The Respondent served as the executive director of the Task Force from its inception in 1985 until November 13, 1989. (Stipulated Fact). The Respondent's involvement with the Task Force began before, and continued after, he became a Florida state representative. The Respondent's duties as executive director of the Task Force included working with the Florida Department of Transportation (hereinafter referred to as the "Department") to ensure that donations of right-of-way adjacent to State Road 580/584 met the Department's legal and technical requirements. (Stipulated Fact). The Respondent's duties as executive director of the Task Force also included gathering information about the Department's progress and decisions pertaining to the 580/584 Project, so that the proper right-of-way donations could be obtained. (Stipulated Fact). The Respondent characterized his relationship with the Task Force as that of a "consultant." The Respondent spoke with the Task Force's general counsel prior to becoming a Florida state representative. Based upon his discussion with the general counsel, the Respondent concluded that he had not been doing anything on behalf of the Task Force that would cause a conflict of interest if he continued his involvement after becoming a Florida state representative. The nature of the Respondent's activities on behalf of the Task Force did not materially change after he became a Florida state representative. He continued to perform his duties in an effort to assist the Task Force to achieve its goals of seeing a quick conclusion of the 580/584 Project which was in the interest of the Task Force and those who had created it, and the other goals of the Task Force. The Respondent's duties as executive director of the Task Force also included production of what were known as "Task Force Monitor Maps." A man by the name of Dick Vaugier, however, also was involved in the preparation of the Task Force Monitor Maps and may have actually performed the physical creation of the maps. The maps tracked the status of all road projects and provided projected completion dates and other information of interest to the Task Force. (Stipulated Facts). Some of the information required to produce the Task Force Monitor Maps was obtained by the Respondent from the Department. (Stipulated Fact). Task Force Monitor Maps underwent several revisions as road projects progressed. (Stipulated Fact). The Respondent provided copies of the completed Task Force Monitor Maps to the Department. (Stipulated Fact). Copies of the maps were also kept at an office of the Respondent where interested persons could review them. The Respondent's Contacts with the Department of Transportation. During the period of time that the Respondent served in the Florida House of Representatives, he had numerous contacts by telephone and in person with employees of the Department concerning the 580/584 Project. The Respondent had three contacts with Gene Dorzback, Department Assistant Project Development and Environmental Administrator, concerning the 580/584 Project. Ms. Dorzback worked in the Department's District 7. Ms. Dorzback worked for the Department from May, 1988, to October, 1990. All of her contacts with the Respondent were during the period of time that he was a Florida state representative. The Respondent discussed the 580/584 Project with Ms. Dorzback on June 15, 1989, during a public hearing on the 580/584 Project. During this conversation, the Respondent expressed his disapproval and frustration over the alignment of the 580/584 Project which the Department had established prior to the public meeting and which the Department had discussed with the public during the public hearing. The Respondent also questioned Ms. Dorzback about why the Department had decided on the alignment presented. Alignment of a road project involves the decision of which side(s) of the road additional right-of-way necessary to complete a road-widening project will be taken from and the amount of right-of-way necessary. Alignment of the 580/584 Project was determinative of the right-of-way which would have to be donated in order to achieve the Task Force's goals. The Respondent's concern over the alignment for the 580/584 Project was over the fact that the alignment would require obtaining right-of-way from property owners that had not agreed to donate right-of-way, and ignored some property owners that were willing to donate right-of-way. Although the Respondent did not specifically suggest that a particular alignment be used by the Department, he did suggest that the Department consider using the right-of- way which property owners were willing to donate. In order for the Department to accept this suggestion the Department would have been required a change the alignment of the 580/584 Project. At some time after the June 15, 1989, public hearing, the Respondent also telephoned Ms. Dorzback and inquired whether she had been provided with certain survey information concerning the 580/584 Project from the District 7 Survey Administrator, Larry Jones. The information involved property of owners who were willing to donate right-of-way. Although the Respondent did not specifically suggest any particular alignment, it was evident from the Respondent's comments to Ms. Dorzback that he believed that accepting donated right-of-way would speed up completion of the 580/584 Project. Ms. Dorzback explained to the Respondent why she did not believe that completion of the project would necessarily be speeded up by accepting donated right-of-way. The third conversation Ms. Dorzback had with the Respondent involved an inquiry from the Respondent concerning whether she had received the survey information he had previously inquired about. At the time of the Respondent's contacts with Ms. Dorzback, she was aware that he was a Florida state representative. Ms. Dorzback was consequently intimidated by the Respondent's criticisms. She was not initially aware of his connection with the Task Force. The Respondent also had contacts with Teresa Estes. Ms. Estes was a Project Manager in the Department's District 7 Project Development and Environmental Section. The Respondent's contacts with Ms. Estes occurred approximately once every three or four months over a two-year period of time when the Respondent was a Florida state representative. Some of the contacts Ms. Estes had with the Respondent involved the 580/584 Project. The contacts took place in the Department's offices. During the Respondent's contacts with Ms. Estes, he inquired about, and they discussed, the progress on an environmental study required for the 580/584 Project. The Respondent requested information from Ms. Estes concerning the 580/584 Project, which she provided to him. The approximately $210,000.00 cost of the environmental study for the 580/584 Project was paid for by two corporations, the Millford Corporation and the Hollywood Corporation. The weight of the evidence failed to prove if these corporations were involved with the Task Force. Ms. Estes knew that the Respondent was a Florida state representative when some of the contacts she had with him occurred. The Respondent informed Ms. Estes that he was a Florida state representative, that he was interested in the 580/584 Project and that he worked with the Task Force. The evidence, however, failed to prove when the Respondent told Ms. Estes that he worked with the Task Force. The Respondent also had at least three or four contacts with James Edwards. Mr. Edwards was the District 7 Public Transportation Manager for the Department from February, 1987, through the present. The Respondent contacted Mr. Edwards by telephone or in person to inquire about the status of the 580/584 Project, right-of-way donations, and other issues or aspects germane to specific projects in the area of the 580/584 Project. Mr. Edwards had at least one other meeting with the Respondent which did not involve the 580/584 Project. Mr. Edwards had to gather information concerning the 580/584 Project prior to his meetings with the Respondent and he provided that information to the Respondent. The Respondent also met three or four times with Ronald G. Pscion, the Department's District 7 Director of Planning and Programs. During one of the Respondent's contacts with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project's work program and how the work on the 580/584 Project was scheduled. Mr. Pscion knew that the Respondent was working with property owners that wanted to donate right-of-way for the 580/584 Project and that one donation was dependent on a particular construction job on the 580/584 Project being completed by fiscal year '91-92. During another contact with Mr. Pscion, the Respondent wanted to insure that the Department was aware of other developments in the area of the 580/584 Project which could impact the project. The Respondent wanted to be sure that traffic in the area could be handled by the 580/584 Project. During a third conversation with Mr. Pscion, the Respondent inquired about the status of the 580/584 Project. The Respondent requested that Mr. Pscion let him know if there was any change in the work program for the 580/584 Project. The Respondent provided a copy of the Task Force Monitor Map prepared for the Task Force to Mr. Pscion. The Respondent also had contacts with Mr. Pscion concerning other road projects of the Department. Mr. Pscion was aware that the Respondent was a Florida state representative but was not aware of his relationship with the Task Force. The Respondent also had more than ten contacts with John H. DeWinkler, the Department's District 1 Director of Production. Mr. DeWinkler worked with the Respondent to achieve the Task Force's objective of trying to speed up the 580/584 Project without having to go through a lengthy process to complete the project. The property owners that were willing to donate right-of-way were entitled to certain rights. Mr. DeWinkler wanted to insure that those rights were not violated. Contacts concerning the 580/584 Project were made by the Respondent with Mr. DeWinkler at or near the time that what is now the Department's District 7 was separated from the Department's District 1. That split occurred in approximately October, 1988, after the Respondent became a Florida state representative. Therefore, some of the Respondent's contacts with Mr. DeWinkler took place when the Respondent was a Florida state representative. The Respondent had at least two contacts concerning the 580/584 Project with Joseph R. Brandenburg. These contacts occurred while the Respondent was a Florida state representative. Mr. Brandenburg was a Department District 7 Right-of-Way Surveyor from September, 1986, through July, 1988. One contact between the Respondent and Mr. Brandenburg involving the 580/584 Project was a meeting which was also attended by Mr. DeWinkler and Derrick Vardy, the Department's District 1 Right-of Way Administrator. During this meeting the Respondent inquired about areas along the 580/584 Project corridor for which right-of-way donations were still needed. As a result of this meeting, Mr. Brandenburg was to provide right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. The other contact which Mr. Brandenburg had with the Respondent was a telephone conversation during which the Respondent inquired about the information he was to be provided as a result of the meeting described in finding of fact 53. Mr. Brandenburg, subsequent to his two contacts with the Respondent, provided the right-of-way maps and property legal descriptions concerning the 580/584 Project to the Respondent. This information was to facilitate the donations of certain right-of-ways along the 580/590 Project corridor. Between February, 1988, and February, 1989, the Respondent also had three contacts with Larry R. Jones. Mr. Jones at that time was Department District 7 Right-of-Way Surveyor. The first contact between the Respondent and Mr. Jones took place shortly after Mr. Jones was employed by the Department. Mr. Jones and the Respondent argued about the width of the right-of-way needed for the 580/584 Project. Their difference of opinion was clarified by Mr. Jones' supervisor. The second contact between the Respondent and Mr. Jones occurred after a telephone call from the Respondent informing Mr. Jones that he was going to come by and pick up title search information concerning the 580/584 Project which was being provided by Pinellas County, Florida. The Respondent did come by and pick up the information. During the third contact between the Respondent and Mr. Jones, they discussed the impact of Murphy Act Deeds on the 580/584 Project. The Respondent suggested that any interest the State might have pursuant to the Murphy Act Deeds should be released to property owners who donated right-of-way for the 580/584 Project. Mr. Jones explained to the Respondent why this should not be done. Mr. Jones testified as to what a Murphy Act Deed, which is also known as "TIITF Reservation", is and the reason why the Department could not take the action the Respondent was suggesting, as follows: Basically a TIITF Reservation was something out of the '30's and '40's. If a tax collector seized a piece of property and sold it for the back taxes, they would reserve a strip of land for road purposes. And in this case 584 had some of these TIITF Reservations on them. That land is usable by the State Road Department. We have to go to DNR to get an easement, not the property owner. We don't pay for them. And by releasing the remainder over from what the PD&E study called for, we'd be in a position if we had to have more right-or-way, we would be back in an acquisition condemnation scenario, we'd be dealing with the property owners instead of DNR. Lines 2-15, page 103, Transcript of the September 4, 1991, Formal Hearing. At the time of the contacts with the Respondent, Mr. Jones was aware that the Respondent was a Florida state representative. The Respondent also represented to Mr. Jones that he was working for the Task Force. James G. Kennedy was the District Secretary for the Department's District 7 from 1987 until May, 1990. From 1984 until 1987, Mr. Kennedy was the Urban Office Director for the Department's District 1. Prior to and after the Respondent became a Florida state representative, Mr. Kennedy had numerous contacts with the Respondent about various transportation matters, including the 580/584 Project. During the Respondent's contacts with Mr. Kennedy after the Respondent became a state representative, the Respondent inquired about the 580/584 Project. In particular, the Respondent asked for information concerning the manner in which the Department acquired right-of-way and the progress on the project. Mr. Kennedy made his staff available to the Respondent. The degree of support given to the Respondent was in part attributable to the Respondent's position as a Florida state representative. The degree of contact Mr. Kennedy and his staff had with the Respondent was significant enough that Mr. Kennedy reported the situation to the Department's Secretary at the time, Kay Henderson. Secretary Henderson merely suggested that Mr. Kennedy use his best judgement to handle the matter. Mr. Kennedy was aware of the Respondent's involvement with the Task Force. Mr. Kennedy had been told by the Respondent that the Respondent was the leader of the Task Force. Mr. Kennedy was concerned enough about the Respondent's relationship with the Task Force that he asked the Respondent whether the Respondent thought there was a conflict of interest with his position as a Florida state representative. Mr. Kennedy was aware that the purpose of the Task Force was to obtain donations of right-of-way along the 580/584 Project corridor to speed up the completion of that project. Mr. Kennedy made his Department available to the Respondent to assist the Respondent in his efforts to insure that the donation of right-of-way along the 580/584 Project corridor was handled properly. The Respondent provided Mr. Kennedy with up-to-date Task Force Monitor Maps. Derrick Vardy was a Department District 1 Right-of-Way Administrator. Mr. Vardy had two telephone conversations with the Respondent and approximately two or three face-to-face meetings with him concerning the 580/584 Project. Some of these contacts occurred in August, 1987. Mr. Vardy attempted to assist the Respondent with documents needed to acquire donations of right-of-way for the 580/584 Project. All of the information which the Respondent obtained from employees of the Department was information which was available to the public. The information was obtained, however, on behalf of the Task Force and not in the Respondent's capacity as a Florida state representative or as a member of the public. The Respondent's contacts with the Department while he was a Florida state representative were made to further the goals of the Task Force and were made on behalf of the Task Force. Compensation. Beginning in 1985, when the Respondent began to perform services for the Task Force, and continuing until November, 1986, the Respondent was paid a consulting fee for his services as executive director of the Task Force. After the Respondent's election as a Florida state representative in November, 1986, the payments from the Task Force that had been made directly to the Respondent were made to Gerald S. Rehm and Associates, Inc. Gerald S. Rehm and Associates, Inc., is a closely held corporation, the stock of which was owned by the Respondent. From 1985 until sometime during 1987, the Task Force paid $2,000.00 a month to the Respondent and later Gerald S. Rehm and Associates, Inc. The amount paid by the Task Force to Gerald S. Rehm and Associates, Inc., was increased in 1987 to $3,000.00 and the corporation began "absorbing expenses" according to the Respondent. The payments to Gerald S. Rehm and Associates, Inc., were made in payment for services of the Respondent. Those services were the same services the Respondent performed for which payments were made directly to the Respondent before he become a Florida state representative. The weight of the evidence failed to prove that the payments made by the Task Force to Gerald S. Rehm and Associates, Inc., were merely reimbursements of expenses of the corporation. The Respondent testified that the payments his corporation received while he was a Florida state representative were reimbursements of expenses. This testimony was not credible. The Respondent characterized the payments he had received prior to his election as a Florida state representative as consulting fees. He did not characterize the payments he received before his election as a reimbursement of expenses. The Respondent admitted that his services were essentially the same before and after he became a Florida state representative. Therefore, since his services did not change and the amount of the payments did not change after he became a Florida state representative, it is not credible to believe that the payments after he became a Florida state representative were merely intended as a reimbursement of expenses. Additionally, the weight of the evidence failed to prove that there was any connection between the expenses that the Respondent or his corporation incurred and the amount of the payments he or his corporation received. Finally, the Respondent testified that the increase from $2,000.00 per month to $3,000.00 per month which occurred in 1987 was to cover expenses. Therefore, based upon the Respondent's own testimony, only $1,000.00 of the $3,000.00 monthly payments were for expenses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Gerald S. Rehm, violated Section 8(e), Article II, of the Constitution of the State of Florida, as alleged in Complaint No. 90-50. DONE and ENTERED this 13th day of November, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. General 1 3-4. 2 1. 3-4 2. 5 5. B. Top of the Bay Task Force 1 6. 2 7. 3 8. 4 9-10. 5 12. 6 13. 7 11 and 13. 8 7 and 9-11. C. The Respondent's Relationship with the Task Force 1 14. 2 Hereby accepted. 3-4 17. 5-6 21. 7 22. 8 23-24. 9 15. 10 19-20. 11 73-75. 12 76-77. 13 75. D. Respondent's Contacts with the Department of Transportation 1 See 26-27. 2 27-29. 3 28-29. 4 32. 5 30. 6 See 30. 7 31. 8 See 32. 9 26. 10 33. 11 33. The weight of the evidence failed to prove when Ms. Estes was employed with the Department. It is not, therefore, possible to tell whether his contacts with Ms. Estes were during his term as a Florida state representative based upon when he served. Ms. Estes did testify, however, that she knew the Respondent was a Florida state representative. Based upon this testimony, it has been concluded that the Respondent had contacts with Ms. Estes while he was a Florida state representative. 12 34-35. 13 38. 14 39. 15 39-41. 16 See 39-41. 17 Not relevant. The evidence failed to prove who the "developer" was or what relationship, if any, the "developer" had with the Task Force or the Respondent. 18 41. 19 42. 20 42-43. 21 44. 22 45. 23 See 48. 24 46. 25 49. 26 Hereby accepted. 27 50. 28-29 51. 30-31 50. 32 52. 33 52-54. 34 53. 35 54. 36-37 55. 38 56. 39 See 56-57. 40 58. 41-42 59. 43 60. 44 59. 45 61. 46 66. 47 Hereby accepted. 48 62-63. 49 64. 50 68. 51 Hereby accepted. 52 69. 53 70. 54-55 69. 56 See 71. 57 Hereby accepted. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3. The evidence proved that the Respondent dropped the title of "President." The evidence also proved that the Respondent's duties after becoming a Florida state representative did not materially change. 2 14. 3 6. 4 7. 5 7 and 10. 6 See 7. 7 15-16. 8 The meeting referred to in this proposed finding of fact is not relevant. It occurred before the Respondent became a Florida state representative. See 50, 52-53 and 69. 9 17. 10 See 25-27 and 30-32. See 28-29 with regard to the 6th and 7th sentences. 11 33-34 and 36. 12 39-40 and 71. 13 52-55. The last sentence is not relevant. 14 42, 48 and 71. See 43-45. 15 56-59. 61-63 and 71. The 4th and 5th sentences are generally true, but see 64-67. Although correct (except the value of the right-of-way, which the weight of the evidence failed to prove), not relevant to this proceeding. 18 See 21-24. But see 16-20. 22 and hereby accepted. 47, 68 and hereby accepted. 21 13. 22 74-77. 74. The 2d sentence is not supported by the weight of the evidence; see 80. 74. See 25-71. The last two sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 19. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, FL 32399-1050 Mark Herron, Esquire Bonnie J. Williams J. B. Donnelly, Esquire Executive Director Akerman, Senterfitt, Eidson Commission on Ethics & Moffit The Capitol, Room 2105 216 South Monroe Street Post Office Box 6 Suite 300 Tallahassee, FL 32302-0006 Post Office Box 10555 Tallahassee, FL 32302-2555
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 Whether the Respondent by erecting the two subject signs violated the state and federal regulation and laws by erecting one sign on the right of way of U.S. 319, a Federal Aid Primary Road, and erecting one sign within five (5) feet of said highway. Whether subject signs should be removed for lack of permits.
Findings Of Fact Claimant contended and Respondent admitted that the two subject signs were in violation of set-back requirements of Chapter 479 and the Federal Beautification Act as charged.
