DEP #12-1171
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
AMANDA POPE and ANASTASIA, INC.,
)
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Petitioners,
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vs.
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DANIEL AND DONNA GRACE; JOSEPH
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AND LINDA NOFTELL; PAUL AND DEBRA )
LINGER; ANN PASTORE; THOMPSON AND)
DANA FILLMER; JOSEPH AND DOTTIE
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SCRUGGS; STEPHEN FREY; LINDSEY
)
BRAMLITT AND JACQUELINE PORTER,
)
TRUSTEES OF THE LAND TRUST DATED )
MAY 1, 2005; and DEPARTMENT OF
)
ENVIRONMENTAL PROTECTION,
)
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Respondenm.
)
)
OGC CASE NO.
DOAH CASE NO.
11-0644
11-5313
11-6248
FINAL ORDER
An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings
("DOAH"), on October 5,2012, submitted a Recommended Order ("RO") to the
Department of Environmental Protection ("DEP" or "Department"). A copy of the RO is
attached hereto as Exhibit A. The RO showed that copies were sent to counsel for the
Petitioners, Amanda Pope and Anastasia, Inc. ("Petitioners"), and counsel for the above
referenced Respondents ("Respondent Applicants") and the Department. The
Petitioners filed their Exceptions to the RO on October 15, 2012, and the Department
responded on October 25,2012. The Department and the Respondent Applicants filed
their Exceptions on October 22, 2012, and the Petitioners responded on November 1,
2012. This matter is now on administrative review before the Secretary for final agency
action.
BACKGROUND
The Department received the Respondent Applicants' request for an exemption,
on March 24,2011, from the Coast Construction Control Line ("CCCL") permit
requirement related to performing repair and maintenance to an existing dune walkover
structure. The structure provides access to the Atlantic Ocean from their neighborhood,
Milliken's Replat, in St. Johns County. The Department issued an Exemption Notice to
the Respondent Applicants on March 3D, 2011 (File No. CNS-SJ-438). On September
8, 2011, the Department issued an Amended Exemption Notice (File No. CNS-SJ-438
EX Amended) that stated in relevant part:
This is an amended letter in response to your request
received by the Department on March 24, 2011, for a
determination of exemption from permit requirements for the
repair and maintenance of a dune walkover structure at the
above location.
According to the description provided by the contractor, Rick
Powell of Barefoot Marine, the proposed work is to consist of
repair and maintenance of the portion of a dune walkover
located landward of the dune crest. The repair and
maintenance is to consist of replacement of bolts, screws,
plates and other fasteners; replacement of wood members
such as handrails, posts above walkover deck planks, deck
planks and stringers; and repairs to support members such
as the addition of sister posts next to existing posts. Repair
and maintenance activities shall not result in the realignment
or reconfiguration of the walkover outside of the extents of
the original structure. With the exception of the minimal
ground disturbance required to repair posts or to add sister
posts, no vegetation shall be removed nor dune topography
altered.
2
Based on the above description, the proposed work is not
expected to cause a measurable interference with the
natural functioning of the coastal system. Therefore, the
Department has determined that the proposed work satisfies
the exemption requirements of Section 161.053(11)(b),
Florida Statutes. All debris must be removed and disposed
of landward of the coastal construction control line.
The Petitioners filed separate petitions contesting the Department's decision to
grant the exemption. The petitions were referred to DOAH and consolidated for hearing
by order dated December 20,2011. At the outset of the final hearing on April 17, 2012,
the Respondent Applicants made an oral motion to dismiss, raising for the first time the
question of the timeliness of both petitions. The ALJ requested and received written
briefing by the parties and subsequently denied the Respondent Applicants motion by
order dated May 2, 2012.
The final hearing was completed on May 24,2012. The ALJ's RO indicated that
a complete transcript of the proceeding was not ordered by any of the parties. Selected
portions of the transcript were filed at DOAH on July 3 and 5, 2012. All parties filed
proposed recommended orders, and the ALJ subsequently issued his RO on October 5,
2012.
SUMMARY OF THE RECOMMENDED ORDER
In the RO the ALJ recommended that the Department enter a final order denying
the application of the Respondent Applicants for an exemption from the requirements of
CCCL permitting under Section 161.053(11)(b), Florida Statutes, for their proposed
activities on a dune walkover structure seaward of the coastal construction control line
at the end of Milliken Lane in St. Johns County. (RO at page 33). The ALJ found that
3
section 161.053(11)(b) exempts from the CCCL permitting requirements those activities
that the Department determines do "not cause a measurable interference with the
natural functioning of the coastal system." (RO 1125). The ALJ also found that the
unchallenged expert testimony established that "the proposed project would not cause a
measurable interference with the natural functioning of the coastal system, and that the
criteria for the grant of an exemption from the CCCL permitting requirements were met."
(RO
11 34).
Although the ALJ found that "the proposed project would meet the
exemption criteria of section 161.053(11)(b)" (RO
m20-34), however, he concluded
that section 161.053(11)(b) is not the applicable provision for repair or replacement of
an existing structure such as a dune walkover. (RO 1150).
The ALJ concluded that "the specific provisions of section 161.053(11 )(a), not the
general exemption language of section 161.053(11)(b), should have been applied" by
the Department to the proposed project. (RO W 50,55,62-64). He stated that "[a]ny
exemption from CCCL permitting for this existing structure should have been
accomplished through the applicable paragraph (a)," and if not, the "Applicants should
have been required to obtain ... a permit pursuant to section 161.053(11 )(a)." (RO
W
55 and 62). The ALJ concluded that the Department ignored the paragraph (a)
provision that "specifically references 'existing structures' such as the dune walkover in
favor of considering the Applicants' proposal as an 'activity'." (RO 1162).
After noting that the "existing structures" substance of subsection (11)(a) has
been a part of section 161.053 since 1975 and that the "activities" exemption language
was added to the statute in 1998; the ALJ concluded: "It is clear that, whatever the term
4
'activities' covers, the Legislature did not intend that it subsume 'existing structures' in
the manner proposed by the Department." (RO If[ 63). The ALJ further concluded that
"[e]ven without regard to legislative intent, the rules of statutory interpretation provide
that the more specific statutory provision controls over the more generaL" (RO If[ 64).
Thus, he ultimately concluded that the Respondent Applicants "failed to prove their
entitlement to an exemption under section 161.053(11)(b), Florida Statutes." (RO If[ 65).
STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS
Section 120.57(1)(1), Florida Statutes, prescribes that an agency reviewing a
recommended order may not reject or modify the findings of fact of an ALJ, "unless the
agency first determines from a review of the entire record, and states with particularity in
the order, that the findings of fact were not based on competent substantial evidence."
§ 120.57(1)(1), Fla. Stat. (2012); Charlotte County v. IMC Phosphates Co., 18 SO.3d
1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 SO.2d 61 (Fla. 1st DCA
2007). The term "competent substantial evidence" does not relate to the quality,
character, convincing power, probative value or weight of the evidence. Rather,
"competent substantial evidence" refers to the existence of some evidence (quantity) as
to each essential element and as to its admissibility under legal rules of evidence. See
e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 SO.2d 287,
289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 SO.3d 1191, 1192 (Fla. 5th DCA
2010).
A reviewing agency may not reweigh the evidence presented at a DOAH final
hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See
5
e.g., Rogers v. Dep't of Health, 920 SO.2d 27,30 (Fla. 1st DCA 2005); Belleau v. Dep't
of Envtl. Prot., 695 SO.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands
County Sch. Bd., 652 SO.2d 894 (Fla. 2d. DCA 1995). These eVidentiary-related
matters are within the province of the ALJ, as the "fact-finder" in these administrative
proceedings. See e.g., Tedderv. Fla. Parole Comm'n, 842 So.2d 1022,1025 (Fla. 1st
DCA 2003); Heifetz v. Dep'tofBus. Regulation, 475 SO.2d 1277,1281 (Fla. 1st DCA
1985). Also, the ALJ's decision to accept the testimony of one expert witness over that
of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,
absent a complete lack of any competent substantial evidence of record supporting this
decision. See e.g., Peace River/Manasota Regional Water Supply Authority v. IMC
Phosphates Co., 18 So.3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. V. State,
Dep't of HRS, 462 SO.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sieffa Club v.
Orlando Uti/so Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Therefore, if the
DOAH record discloses any competent substantial evidence supporting a challenged
factual finding of the ALJ, this agency is bound by such factual finding in preparing this
Final Order. See, e.g., Walker v. Bd. of Prof. Eng'rs, 946 So.2d 604 (Fla. 1st DCA
2006); Fla. Dep't of COff. V. Bradley, 510 SO.2d 1122, 1123 (Fla. 1st DCA 1987). In
addition, an agency has no authority to make independent or supplemental findings of
fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA
1994).
Section 120.57(1)(1), Florida Statutes, authorizes an agency to reject or modify
an ALJ's conclusions of law and interpretations of administrative rules "over which it has
6
substantive jurisdiction." See Barfield v. Dep't of Health, 805 SO.2d 1008 (Fla. 1st DCA
2001); L.B. Bryan & Co. v. Sch. Bd. of Broward County, 746 SO.2d 1194 (Fla. 1st DCA
1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 SO.2d 1.140 (Fla. 2d DCA 2001).
If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be
disregarded and the item treated as though it were actually a conclusion of law. See,
e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 SO.2d 161
J
168 (Fla. 5th DCA 1994). Neither should the agency, however, label what is essentially
an ultimate factual determination as a "conclusion of law" in order to modify or overturn
what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of
Profl Eng'rs, 952 SO.2d 1224 (Fla. 1st DCA 2007).
An agency's review of legal conclusions in a recommended order is restricted to
those that concern matters within the agency's field of expertise. See, e.g., Charlotte
County v. IMC Phosphates Co., 18 So.3d 1089 (Fla. 2d DCA 2009); G.E.L. Corp. v.
Dep't of Envtl. Prot., 875 SO.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the
primary responsibility of interpreting statutes and rules within its regulatory jurisdiction
and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police
Benevolent Ass'n, 467 SO.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v.
Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be
accorded to these agency interpretations of statutes and rules within their regulatory
jurisdiction, and such agency interpretations should not be overturned unless "clearly
erroneous." See, e.g., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dep't of Envtl.
Regulationv. Goldring, 477 So.2d 532, 534 (Fla. 1985). Furthermore, agency
7
interpretations of statutes and rules within their regulatory jurisdiction do not have to be
the only reasonable interpretations. It is enough if such agency interpretations are
"permissible" ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 SO.2d
209,212 (Fla. 1st DCA 1996).
Agencies do not, however, have jurisdiction to modify or reject rulings on the
admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues
susceptible to ordinary methods of proof that are not infused with [agency] policy
considerations," are not matters over which the agency has "substantive jurisdiction."
See Martuccio v. Dep't of Prof! Regulation, 622 SO.2d 607,609 (Fla. 1st DCA 1993);
Heifetz v. Dep't of Bus. Regulation, 475 SO.2d 1277, 1281 (Fla. 1st DCA 1985); Fla.
Power & Light Co. v. Fla. Siting Bd., 693 SO.2d 1025, 1028 (Fla. 1st DCA 1997).
Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of
fact" and may not be reversed on agency review. See Martuccio, 622 SO.2d at 609.
Agencies do not have the authority to modify or reject conclusions of law that apply
general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g.,
Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 SO.2d 1140, 1142 (Fla. 2d DCA 2001).
RULINGS ON EXCEPTIONS
The case law of Florida holds that parties to formal administrative proceedings
must alert reviewing agencies to any perceived defects in DOAH hearing procedures or
in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See,
e.g., Comm'n on Ethics v. Barker, 677 SO.2d 254,256 (Fla. 1996); Henderson v. Dep't
of Health, Bd. of Nursing, 954 SO.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. V.
8
Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to
certain findings of fact the party "has thereby expressed its agreement with, or at least
waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward
County, 586 SO.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr.,
Inc. v. State of Fla., Agency for Health Care Admin., 847 SO.2d 540, 542 (Fla. 4th DCA
2003). Even when exceptions are not filed, however, an agency head reviewing a
recommended order is free to modify or reject any erroneous conclusions of law over
which the agency has substantive jurisdiction. See § 120.57(1)(1), Fla. Stat. (2012);
Barfield v. Dep't of Health, 805 SO.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee
Council, 79 v. Daniels, 646 So.2d 813,816 (Fla. 1st DCA 1994).
Finally, in reviewing a recommended order and any written exceptions, the
agency's final order "shall include an explicit ruling on each exception." See §
120.57(1)(k), Fla. Stat. (2012). The agency need not rule on an exception, however,
that "does not clearly identify the disputed portion of the recommended order by page
number or paragraph, that does not identify the legal basis for the exception, or that
does not include appropriate and specific citations to the record." Id.
RESPONDENTS' EXCEPTIONS
DEP Exception Nos. 1 through 3; Applicants' Exception Nos. 4.7.8.10.11. and 12
The Respondents, DEP and Applicants, take exception to paragraphs 50, 55, 62,
63 and 64 of the RO where the ALJ set forth his legal analysis regarding the statutory
9
provision that should be applied to the Respondent Applicants' exemption request. 1 See
"Summary of the Recommended Order" supra. The Respondents correctly assert that
the statutory provisions are clear and unambiguous and that the ALJ's legal conclusions
should be rejected.
A review of relevant statutory provisions shows that the Department is charged
by the Legislature with regulating coastal construction so that the beaches of the state
are preserved and protected from "imprudent construction."2 See § 161.053(1)(a), Fla.
Stat. (2012). The Department is authorized to establish coastal construction control
lines. See Id. Special siting and design considerations shall be necessary seaward of
such lines to ensure the protection of the beach-dune system, proposed or existing
structures, and adjacent properties and the preservation of public beach access. See Id.
In addition, the Department may not authorize construction seaward of an established
30-year erosion projection. See § 161.053(5), Fla. Stat. (2012). The Department may
grant a permit to allow coastal construction and excavation seaward of the coastal
construction control line upon consideration of facts and circumstances outlined in
subsection (4) of section 161.053, including the siting and design considerations
If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be
disregarded and the item treated as though it were actually a conclusion of law. See,
e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 SO.2d 161,
168 (Fla. 5th DCA 1994). Paragraphs 50 and 55 of the RO are legal conclusions, not
factual findings.
1
2 "Coastal construction" is defined to include "any work or activity which is likely to have
a material physical effect on existing coastal conditions or natural shore and inlet
processes." See § 161.021(6), Fla. Stat. (2012).
10
authorized by subsection (1) and the limitation in subsection (5). See § 161.053(1), (4),
and (5), Fla. Stat. (2012).
In paragraph (a) of subsection 161.053(11), the Legislature exempted "any
modification, maintenance, or repair of any existing structure within the limits of the
existing foundation which does not require, involve, or include any additions to, or repair
or modification of, the existing foundation of that structure," from the application of the
siting and design requirements of subsection (1) and the requirements of the erosion
projections in subsection (5). See § 161.053(11)(a), Fla. Stat. (2012). To use this
paragraph (a) exemption the proposed project must clearly meet all the specified
criteria. See Lardas v. Dep't of Envtl. Protection, 28 F.A.L.R. 3844,3848 (Fla. DEP
2005)("a party claiming an exemption from general requirements imposed on the public
at large must 'clearly' establish entitlement to the exemption. "). The ALJ's findings in
paragraphs 17,18,23, and 24, which are supported by competent substantial record
eVidence,3 show that the Respondent Applicants proposed project does not meet all the
specified criteria of paragraph (a) of subsection 161.053(11) because it includes
foundation additions (Le., addition of sister posts next to existing postS).4
Contrary to the ALJ's conclusion in paragraphs 55 and 61 5 of the RO, however,
paragraph (a) of subsection 161.053(11) does not contain any language requiring or
3 Morgan, T. Vol. 2 pp. 20-21,24-25; Joint Ex. 8; Applicants' Ex. 12.
4 Under Florida Administrative Code rule 628-33.002(26) the definition of "[fjoundation"
includes "posts."
5 With regard to paragraph 61 of the RO, an agency head reviewing a recommended
order is free to modify or reject any erroneous conclusions of law over which the agency
11
directing that the Respondent Applicants obtain a permit. See § 161.053(11 )(a), Fla.
Stat. (2012); see, e.g., Atlantis at Perdido Assoc., Inc. v. Warner, 932 SO.2d 1206, 1212
(Fla. 1st DCA 2006)("[W]here a department's construction of a statute is inconsistent
with clear statutory language it must be rejected, notwithstanding how laudable the
goals of that department [may be]."); Sf. Petersburg Bank & Trust Co. v. Hamm, 414
So.2d 1071, 1073 (Fla. 1982)("[E]ven where a court is convinced that the legislature
really meant and intended something not expressed in the phraseology of the [statute],
it will not deem itself authorized to depart from the plain meaning of the language which
is free from ambiguity.").
In paragraph (b) of subsection 161.053(11), the Legislature exempted "[a]ctivities
seaward of the coastal construction control line which are determined by the department
not to cause a measurable interference with the natural functioning of the coastal
system" from the requirement to obtain a permit. See § 161.053(11)(b), Fla. Stat.
(2012).6 "Activities seaward of the coastal construction control line" should be read in
the context of section 161.053, which clearly regulates the activities of "coastal
construction and excavation." In this context the term is not ambiguous. See, e.g., Fla.
has substantive jurisdiction, even when no exceptions are filed. See § 120.57(1)(1), Fla.
Stat. (2012).
6 The ALJ found that section 161.053(11)(b) exempts from the CCCL permitting
requirements those activities that the Department determines do "not cause a
measurable interference with the natural functioning of the coastal system." (RO 1125).
The ALJ also found that the unchallenged expert testimony established that "the
proposed project would not cause a measurable interference with the natural
functioning of the coastal system, and that the criteria for the grant of an exemption from
the CCCL permitting requirements were met." (RO 1134).
12
Birth-Related Neurological Injury Compo Assoc. v. Dep't of Admin. Hrgs., 29 So.3d 992,
997-998 (Fla. 2010)("[w]hen the language of the statute is clear and unambiguous and
conveys a clear and definite meaning, there is no occasion for resorting to the rules of
statutory interpretation and construction; the statute must be given its plain and obvious
meaning."). Contrary to the ALJ's conclusion in paragraph 63 of the RO, paragraph (b)
of subsection 161.053(11) does not contain any language excluding "existing structures"
from consideration when applying this exemption. See § 161.053(11)(b), Fla. Stat.
(2012); see, e.g., Atlantis at Perdido Assoc., Inc. v. Warner, 932 So.2d 1206, 1212 (Fla.
1st DCA 2006)( reflecting that a statute's plain language is not subject to judicial
construction.); State v. Jeff, 626 SO.2d 691, 692 (Fla. 1993)('We trust that if the
legislature did not intend the result mandated by the statute's plain language, the
legislature itself will amend the statute at the next opportunity.").
Under Section 120.57(1)(1), Florida Statutes, the Department finds that its
interpretation of the statute within its substantive jurisdiction "is as or more reasonable
than" than the ALJ's conclusions of law in paragraphs 50,55,61,62,63, and 64, that
are rejected and not adopted in this Final Order.
Assuming arguendo that the term "activities" in paragraph (b) of subsection
161.053(11) is ambiguous, the ALJ did not properly apply the rules of statutory
construction in the instant case. The ALJ applied the rule of statutory construction that
"[a] specific statute covering a particular subject area always controls over a statute
covering the same and other subjects in more general terms. The more specific statute
is considered to be an exception to the general terms of the more comprehensive
13
statute." See RO 1164 citing Heron at Destin W Beach & Bay Resort Condo. Ass'n, Inc.
v. Osprey at Destin W Beach & Bay Resort Condo. Ass'n, Inc... 94 So.3d 623 (Fla. 1st
DCA 2012), quoting McKendry v. State, 641 So.2d 45, 46 (Fla. 1994). As the DEP
points out in its first exception, however, the Heron and McKendry decisions can be
distinguished from the instant proceeding.
The question in Heron was which of two separate acts, the Condominium Act or
the Non-Profit Corporations Act, controlled the voting requirements of a Master
Association where the Acts set forth different voting requirements. Based on the
language of the two Acts, the voting requirements of the Condominium Act and the NonProfit Corporations Act could not apply simultaneously. The First District Court of
Appeal found that the Condominium Act controlled because it expressly provided that it
controlled over the Non-Profit Corporations Act. The Court determined that the two
different voting requirements could not apply simultaneously since they were
inconsistent. Heron, 94 SO.3d at 631. In the instant case, the two exemptions in
question can both apply to the type of activity proposed here and are not inconsistent
with each other. The type of activity at issue here could qualify for an exemption under
either provision if the activity met the specific requirements of each exemption. See,
e.g., RO 11 34.
In McKendry the Florida Supreme Court held that "section 790.221 (2), which
specifically addresses the criminal penalty for possession of a short-barreled shotgun,
prevails over section 948.01, which generally gives a trial jUdge discretion to suspend
criminal sentences" and that any other conclusion "would render the specific mandatory
14
language of section 790.221(2) without meaning." McKendry, 641 So.2d at 46. In the
instant proceeding, however, applying both paragraphs (a) and (b) of subsection
161.053(11) to the type of activity in this case would not render either provision
meaningless. Indeed, the proposed activity in this case could qualify for an exemption
under either provision if the activity meets the requirements of each exemption.
In addition, paragraphs (a) and (b) of subsection 161.053(11) are more similar to
the statutory provisions that were at issue in Doe v. Broward efy. School Bd., 744 So.2d
1068 (Fla. 4th DCA 1999). In Doe the question was whether a very specific statutory
provision pertaining to the child victim hearsay exception preempted the application of
all other hearsay exceptions when the out-of-court statement was made by a child
victim of abuse. The District Court of Appeal held that the very specific statutory
provision, the child victim hearsay exception, did not preempt applicability of all other
hearsay exceptions. Doe, 744 SO.2d at 1073. The statutory provisions in Doe are more
similar to the statutory provisions in this case. Just as the child victim hearsay
exception is an exception for a very specific type of hearsay, paragraph (a) of
subsection 161.053(11) is an exemption for a very specific type of activity. Just as the
same type of hearsay could qualify for another hearsay exception in Doe even though it
could not qualify for the more specific hearsay exception, the same type of activity could
qualify for another exemption here even if the proposed activity could not qualify for the
more specific exemption.
Under Section 120.57(1)(1), Florida Statutes, the Department finds that its
interpretation of the statute within its substantive jurisdiction "is as or more reasonable
15
than" than the ALJ's conclusions of law in paragraphs 50,55,61,62,63, and 64 that
are rejected and not adopted in this Final Order.
Therefore, based on the foregoing reasons, the DEP's Exception Nos. 1 through
3, and the Applicants' Exception Nos. 4, 7, 8, 10, 11, and 12, are granted.
DEP Exception No.4; Applicants' Exception Nos. 13 and 14
The Respondents, DEP and Applicants, take exception to paragraph 65 and the
Recommendation of the RO where the ALJ ultimately concluded that the Respondent
Applicants failed to prove their entitlement to an exemption under section
161.053(11)(b), Florida Statutes. The rulings on the DEP's Exception Nos. 1 through 3
and the Applicants' Exception Nos. 4, 7,8, 10, 11, and 12 above, are adopted herein.
Also, based on the ALJ's findings in paragraphs 25 through 34, the ALJ's conclusion in
paragraph 65 is rejected. The more reasonable conclusion is that the Respondent
Applicants' project qualifies for the exemption under paragraph (b) of subsection
161.053. See § 120.57(1)(1), Fla. Stat. (2012).
Therefore, based on the foregoing, the DEP's Exception NO.4 and Applicants'
Exception Nos. 13 and 14, are granted.
DEP Exception No.5; Applicants' Exception No.9
The Respondent Applicants take exception to paragraph 58 of the RO, where the
ALJ concludes that the Petitioners have standing. (RO 1f 58). The Applicants only
objection to the Petitioners' standing is based on the Petitioners' "untimely filing of
petitions seeking review." The DEP's exception specifically objects to that portion of the
RO's "Preliminary Statement" where the ALJ states:
16
At the outset of the hearing on April 17, 2012, Applicants
made an oral motion to dismiss, raising for the first time the
question of the timeliness of both the Pope Petition and the
Anastasia Petition. The parties were given until April 27,
2012, to submit briefs on the issue. By order dated May 2,
2012, the undersigned denied the Applicants' motion. In their
Proposed Recommended Orders, Applicants and the
Department continue to argue that the petitions should be
dismissed, but have not persuaded the undersigned to
change the conclusion reached in the May 2,2011 order.
In his May 2, 2011 order, the ALJ stated that he "directed the parties to brief the issues
of timeliness and waiver." The order denied the Respondent Applicants' motion to
dismiss stating that:
Applicants' raising of the timeliness question at the final
hearing is properly viewed as a motion to dismiss on other
than jurisdictional grounds. Florida Administrative Code Rule
28-106.204(2) provides: "Unless otherwise provided by law,
motions to dismiss the petition or request for hearing shall be
filed no later than 20 days after service." The Applicants'
motion to dismiss the petitions must therefore be denied as
untimely. See Samuels v. Imhoof and Dep't of Envir. Prot.,
Case No. 03-2586,11 21, (DOAH February 17, 2004).
Essentially, the ALJ ruled that under Florida Administrative Code Rule 28-106.204(2)
the timeliness issue was waived in the absence of a timely motion to dismiss. The
ALJ's procedural rulings and interpretation of Florida Administrative Code Rule 28106.204(2) are not matters within this agency's substantive jurisdiction.
Therefore, based on the foregoing, the DEP's Exception NO.5 and Applicants'
Exception NO.9 are denied. In addition, the DEP's request for remand based on its
Exception NO.5 is denied?
7 It is well established by the controlling case law of Florida that an agency has the
authority to remand an administrative case back to DOAH for further limited
17
DEP Exception No.6
The DEP takes exception to that portion of the "Notice of Right to Submit
Exceptions" on page 38 of the RO where the parties were informed that they had ten
days to submit exceptions. The DEP correctly points out that the parties in this type of
proceeding are allowed fifteen days from the date of the RO to file exceptions. See §
120.57(1)(k), Fla. Stat. (2012); see also Fla. Admin. Code R. 28-106.217. All the parties
in this proceeding filed their exceptions within fifteen days, which were all addressed in
this Final Order. Therefore, the DEP's Exception NO.6 is granted.
RESPONDENT APPLICANTS' EXCEPTIONS
Applicants' Exception No.1
The Applicants take exception to paragraph 35 of the RO where the ALJ states
that "the finding [in paragraph 34] that the proposed project would meet the exemption
criteria of section 161.053(11)(b) does not end the inquiry." (RO
11 35).
The Applicants
assert that the ALJ's conclusion is legally incorrect because it is based on the ALJ's
improper legal conclusions regarding application of the exemption paragraphs in
subsection 161.053(11), Florida Statutes.
Based on the above rulings and conclusions adopted in this Final Order, the
Applicants' Exception NO.1 is granted. See The DEP's Exception Nos. 1 through 3 and
4; the Applicants' Exception Nos. 4, 7, 8, 10, 11, 12, 13 and 14, supra.
proceedings where additional findings of fact and related conclusions of law are critical
to the issuance of a coherent final order. See, e.g., Dep't of Envtl. Protection v. Dep't of
Mgmt. Services, Div. of Adm. Hearings, 667 SO.2d 369 (Fla. 1st DCA 1995); Collier
Development Corp. v. Dep'tofEnvtl. Regulation, 592 SO.2d 1107 (Fla. 2d DCA 1991).
18
Applicants' Exception Nos. 2. 3. and 5
The Applicants take exception to portions of paragraphs 36, 37 and 52 of the RO.
on the basis that these paragraphs (and paragraph 38) are internally inconsistent in
describing the testimony of the Department's senior field inspector. Competent
substantial record evidence, however, supports the ALJ's factual findings regarding the
testimony of the Department's senior field inspector. (Petitioners' Composite Ex. 2;
Hatch Vol. 2, pp. 61-64; McNeal Vol. 4, pp. 25-26). The ALJ's legal conclusions that
were partially based on these findings. however, have been rejected as described in the
above rulings. See The DEP's Exception Nos. 1 through 3 and 4; the Applicants'
Exception Nos. 4,7,8,10,11,12,13 and 14, supra.
Therefore, based on the foregoing reasons, the Applicants' Exception Nos. 2, 3
and 5, are denied.
Applicants' Exception No.6
The Applicants take exception to paragraph 53 of the RO. The Applicants object
to the ALJ's characterization of Mr. Martinello's testimony and the evidence submitted
by the Petitioners. Under the standard of review applicable to recommended orders,
however, the ALJ's reasonable inferences that are supported by competent substantial
record evidence are not subject to modification or rejection by the reviewing agency.
See § 120.57(1)(1), Fla. Stat. (2012). Therefore, because the ALJ's findings in
paragraph 53 are supported by competent substantial record evidence (Martinello Vol.
2, pp. 76, 81-83; Petitioners' Ex. 4), the Applicants' Exception NO.6 is denied.
19
PETITIONERS' EXCEPTIONS
Petitioners' Exception No.1
The Petitioners take exception to paragraph 1 of the RO where the ALJ found
that: "Milliken Lane bisects the 10 lots, Le., five lots are on each side of the lane. Lots 1
through 5 are on the north side of Milliken Lane, and Lots 6 through 10 are on the south
side." The Petitioners contend that Milliken's Lane bisects lots 1 through 4 to the north
and 7 through 10 to the south, and ends in a cul-de-sac at lots 5 and 6.
A review of the entire record shows that the ALJ's finding in paragraph 1 is not
based on competent substantial evidence. See § 120.57(1)(1), Fla. Stat. (2012). In fact,
the competent substantial record evidence supports the Petitioners' contention
(Applicants' Ex. 2; Petitioners' Exs. 4a, 18). Therefore, the Petitioners' Exception No.1
is granted.
Petitioners' Exception No.2
The Petitioners take exception to paragraph 5 and Endnote 2 on page 34 of the
RO where the ALJ found that Milliken's Replat shows the path of the walkway extending
all the way to the Atlantic Ocean. The Petitioners contend that the platted lot lines do
not extend all the way to the Atlantic Ocean and that the path of the walkway ends at
the eastern edge of the platted lot lines. The competent substantial evidence supports
the Petitioners' contention (Applicants' Ex. 2; Petitioners' Exs. 4a, 18,24). Therefore,
the Petitioners' Exception NO.2 is granted.
20
Petitioners' Exception Nos. 3 and 6
The Petitioners take exception to paragraph 34 of the RO where the ALJ found
that the information requirements of Florida Administrative Code rules 628-33.0081 (a
survey), 628-33.008(3)(I)(a dimensioned site plan), and 628-33.008(5)(other site
specific information), were not necessary to make the exemption determination under
section 161.053(11)(b), Florida Statutes, and that the Petitioners offered no evidence to
the contrary. The Petitioners argue that these provisions require disclosure of
information to the Department to determine if the applicant has the necessary
ownership or legal authority to receive the sought after permit or exemption. The
Petitioners also take exception to paragraph 56 of the RO where the ALJ noted that it
was not necessary that he rule on the ownership issue. (RO 11 56).
Competent substantial record evidence supports the ALJ's factual findings in
paragraphs 28,32 and 33 that a survey, a dimensioned site plan and other site specific
information were not necessary for the Department to make an exemption determination
under section 161.053(11)(b). (Morgan Vol. 2, pp. 16-17, 20; McNeal Vol. 4, pp. 12-13,
16). The Petitioners do not challenge these critical factual findings, which support the
ALJ's ultimate determination in paragraph 34. 8 Instead, the Petitioners argue that the
rule provisions "as a whole" require evidence of ownership or legal authority to
undertake the proposed project.
Having filed no exceptions to certain findings of fact the party "has thereby expressed
its agreement with, or at least waived any objection to, those findings of fact." Envtl.
Coalition of Fla., Inc. v. Broward County, 586 SO.2d 1212, 1213 (Fla. 1st DCA 1991);
see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin.,
847 SO.2d 540,542 (Fla. 4th DCA 2003).
8
21
The plain language of section 161.053(11)(b), Florida Statutes, does not contain
an ownership requirement as a specific exemption criterion. See, e.g., Atlantis at
Perdido Assoc., Inc. v. Warner, 932 So.2d 1206, 1212 (Fla. 1st DCA 2006)("[W]here a
department's construction of a statute is inconsistent with clear statutory language it
must be rejected, notwithstanding how laudable the goals of that department [may
be]."); Lardas v. Dep't of Envtl. Protection, 28 F.A.L.R. 3844 (Fla. DEP 2005).
Therefore, based on the foregoing reasons, the Petitioners' Exception Nos. 3 and
6 are denied.
Petitioners' Exception No.4
The Petitioners take exception to paragraphs 34, 35, and 41 of the RO where the
ALJ found that the proposed project would not cause a measurable interference with the
natural functioning of the coastal system and met the exemption criteria of section
161.053(11)(b), Florida Statutes. The competent substantial record evidence supports
the ALJ's findings. (McNeal Vol. 4, pp. 9-10, 12-13, 16; Morgan Vol. 2, pp. 16-17,20;
Applicants' Ex. 12). The evidence was not refuted by the Petitioners in the
administrative hearing. (RO 1(34).
The Petitioners contend that the ALJ's legal analysis in the RO precludes a
finding that the proposed project would not cause a measurable interference with the
natural functioning of the coastal system and meets the exemption criteria of section
161.053(11)(b), Florida Statutes. The ALJ's factual findings based on the record
evidence and expert testimony, however, was that the project would "not cause a
measurable interference with the natural functioning of the coastal system." (RO 1(34).
22
As outlined above, the ALJ's legal analysis and conclusions are rejected and not
adopted in this Final Order. See The DEP's Exception Nos. 1 through 3 and 4; the
Applicants' Exception Nos. 4, 7, 8, 10, 11, 12, 13 and 14, supra.
Therefore, based on the foregoing reasons, the Petitioners' Exception NO.4 is
denied.
Petitioners' Exception No.5
The Petitioners take exception to paragraph 43 of the RO where the ALJ found
that the requirements for a general permit under Florida Administrative Code rule 62834.050(19)(b), were not relevant to whether the project met the specific exemption
criteria of section 161.053(11 )(b). The Petitioners contend that the post size
requirement for a general permit will be exceeded by this project and should be relevant
when considering whether the exemption applies. The plain language of the section
161.053(11)(b) exemption, however, does not include specific post size requirements
for dune walkovers. See, e.g., Atlantis at Perdido Assoc., Inc. v. Warner, 932 SO.2d
1206, 1212 (Fla. 1st DCA 2006)("[W]here a department's construction of a statute is
inconsistent with clear statutory language it must be rejected, notwithstanding how
laudable the goals of that department [may be]."); Lardas v. Dep't of Envtl. Protection,
28 F.A.L.R. 3844 (Fla. DEP 2005). In addition, this case does not involve a request for
a general permit under Florida Administrative Code chapter 628-34.
Therefore, based on the foregoing reasons, the Petitioners' Exception No.5 is
denied.
23
Petitioners' Exception No.7
The Petitioners take exception to the first sentence in paragraph 62 of the RO
where the ALJ found that "[t]he facts do not admit of question that the dune walkover
structure at the end of Milliken Lane was an 'existing structure'." The Petitioners assert
that the phrase "do not admit of question" is not clear. The ALJ's use of an old
fashioned phrase, however, does not form a legal basis for an exception. See §
120.57(1 )(k), Fla. Stat. (2012).
In its response to this exception the DEP points out that the ALJ's use of the
phrase in paragraph 62 is consistent with its historical use. See, e.g., State v. N.E.
Tampa Special Road & Bridge Dist. of Hillsborough Cty., 148 Fla. 14 (Fla. 1941 )(using
the phrase "admit of question" to mean "open to question"); see also City of Miami v.
McCorkle, 145 Fla. 109, 199 So. 575 (Fla. 1940); Oyama v. Oyama, 138 Fla. 442,189
So. 418 (Fla. 1939).
Therefore, based on the foregoing reasons, the Petitioners' Exception No. 7 is
denied.
Petitioners' Exception No.8
The Petitioners take exception to the recommendation language on page 33 of
the RO where the ALJ describes the project as "proposed activities." The Petitioners
argue that the work is no longer "proposed" since it was already performed. See RO 1m
22-24. The Petitioners further argue that the recommendation should also require
removal of the work. Paragraphs 2, 6, 7, 9, 11, 14, 21, and 23 of the RO, to which the
Petitioners do not take exception, contain the word "proposed" when referring to the
24
project. In addition, the stated issue for adjudication in this administrative proceeding
does not contemplate the type of relief requested by the Petitioners. (RO at pages 2-3).
Therefore, based on the foregoing reasons, and the Department's rejection of the
ALJ's Recommendation in the rulings on the DEP Exception NO.4 and the Applicants'
Exception Nos. 13 and 14, the Petitioners' Exception No.8 is denied.
Petitioners' Exception No.9
The Petitioners take exception to the RO generally because it does not address
the Petitioners' motions for attorney's fees. The record shows that the Petitioners filed a
"Motion for Attorney's Fees, Costs and Expenses Pursuant to Section 120.569(2)(e),
Florida Statutes" on March 27, 2012. The DEP and the Applicants filed responses on
April 6 and April 10,2012, respectively. The Petitioners claim to have also filed a
"Motion for Attorney's Fees Pursuant to Section 57.105, Florida Statutes Against the
Florida Department of Environmental Protection," however, the DOAH docket does not
reflect such a filing. Even so, the DEP filed a response on May 3,2012. 9
The Petitioners request that jurisdiction should be remanded to the ALJ following
entry of a Final Order for further proceedings on their two motions. As the Petitioners'
exception concedes, it is the ALJ who has the exclusive jurisdiction to rule on attorney's
fees motions under sections 120.569(2)(e) and 57.105, Florida Statutes. Thus the
Petitioners' requested relief is not appropriately directed to the Department. See
The DOAH docket also reflects that the Respondent Applicants filed a "Motion for
Attorney's Fees, Costs and Expenses" under Section 120.569(2)(e), Florida Statutes,
on April 16,2012.
9
25
generally Jain v. Fla. Agric. & Mech. Univ., 941 So.2d 998 (Fla. 1st DCA 2005); French
v. Dep't of Children & Families, 920 SO.2d 671 (Fla. 5th DCA 2006).
Therefore, based on the foregoing reasons, the Petitioners' Exception NO.9 is
denied.
CONCLUSION
Having considered the applicable law in light of the rulings on the parties'
Exceptions, and being otherwise duly advised, it is
ORDERED that:
A. The Recommended Order (Exhibit A), as modified by the rulings above, is
adopted in its entirety and incorporated herein by reference.
B. The Respondent Applicants' request for an exemption from the requirements
of CCCL permitting under section 161.053(11)(b), Florida Statutes, for their proposed
activities on a dune walkover structure seaward of the coastal construction control line
at the end of Milliken Lane in St. Johns County (File No. CNS-SJ-438 EX Amended), is
GRANTED.
JUDICIAL REVIEW
Any party to this proceeding has the right to seek judicial review of the Final
Order under Section 120.68, Florida Statutes, by filing a Notice of Appeal under Rules
9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department
in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35,
Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal
accompanied by the applicable filing fees with the appropriate District Court of Appeal.
26
The Notice of Appeal must be filed within 30 days from the date this Final Order is filed
with the clerk of the Department.
DONE AND ORDERED this 1:brday of December, 2012, in Tallahassee,
Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILED ON THIS DATE PURSUANT TO § 120.52,
FLORIDA STATUTES, WITH THE DESIGNATED
DEPARTMENT CLERK, RECEIPT OF WHICH IS
HEREBY ACKNOWLEDGED.
\2.12011 II.
~
27
CERTIFICATE OF SERVICE
I CERTIFY that a copy of the foregoing Final Order has been sent by United
States Postal Service to:
Daniel A. Mowrey, Esquire
Mowrey, Shoemaker and Beardsley
3940 Lewis Speedway, Suite 2103
St. Augustine, FL 32084
Kenneth Pfrengle
3884 Tampa Road
Oldsmar, FL 34677
bye-mail to:
Timothy Joseph Perry, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A.
Post Office Box 111 0
Tallahassee, FL 32302
[email protected]
Alysson Hall Stevens, Esquire
Mowrey Law Firm, P.A.
515 North Adams Street
Tallahassee, FL 32301
[email protected]
Brynna J. Ross, Esquire
Department of Environmental Protection
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
[email protected]
and by electronic filing to:
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
this~ay of December, 2012.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
~'A~CS
FFKES
FRANCINE M.
Administrative Law Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, FL 32399-3000
Telephone 850/245-2242
28
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AMANDA POPE AND ANASTASIA,
INC. ,
)
)
)
)
)
Petitioners,
vs.
) Case Nos. 11-5313
)
11-6248
DANIEL AND DONNA GRACE; JOSEPH
AND LINDA NOFTELL; PAUL AND
DEBRA LINGER; ANN PASTORE;
THOMPSON AND DANA FILLMER;
JOSEPH AND DOTTIE SCRUGGS;
STEPHEN FREY; LINDSEY BRAMLITT
AND JACQUELINE PORTER, TRUSTEES
OF THE LAND TRUST DATED MAY 1,
2005; AND DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
)
)
)
)
)
)
)
)
)
)
)
Respondents.
)
)
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case
on April 17 and May 24, 2012, in Jacksonville, Florida, before
Lawrence P. Stevenson, a duly-designated Administrative Law
Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners:
Timothy J. Perry, Esquire
Oertel, Fernandez, Bryant &
Atkinson, P.A.
Post Office Box 1110
Tallahassee, Florida 32302
EXHIBIT "A"
For Respondent Department of Environmental Protection:
Brynna J. Ross, Esquire
Department of Environmental Protection
Mail Station 35
3900' Commonwealth Boulevard
Tallahassee, Florida 32399-3000
For Respondents Daniel and Donna Grace; Joseph and Linda
Oftell; Paul and Debrq Linger; Ann Pastore; Thompson and Dana
Fillmer; Joseph and Dottie Scruggs; Stephen Frey; Lindsey
Bramlitt and Jacqueline Porter, Trustees of the Land Trust dated
May 1, 2005:
Daniel A. Mowrey, Esquire
Mowrey, Shoemaker and Beardsley
3940 Lewis Speedway, Suite 2103
St. Augustine, Florida 32084
Alysson Hall Stevens, Esquire
Mowrey Law Firm, P.A.
515 North Adams Street
Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
At issue in this proceeding is whether Respondents Daniel
and Donna Grace; Joseph and Linda Oftell; Paul and Debra Linger;
Ann Pastore; Thompson and Dana Fillmer; Joseph and Dottie
Scruggs; Stephen Frey; and Lindsey Bramlitt and Jacqueline
Porter, Trustees of the Land Trust dated May 1, 2005
(collectively referenced herein as "Applicants") qualify for an
exemption from the requirements of coastal construction control
line· ("CCCL") permitting pursuant to section 161.053(11) (b),
Florida Statutes, for their proposed activities in regard to a
dune walkover structure seaward of the CCCL at the end of
2
Milliken Lane in St. Johns County, as provided in the Amended
Exemption Determination issued by the Department of
Environmental Protection ("Department") on September 8, 2011.
PRELIMINARY STATEMENT
Through an email to the Department from their counsel on
March 24, 2011, Applicants requested an exemption from the CCCL
permit requirement related to repair and maintenance to be
performed on an existing dune walkover structure providing
access to the Atlantic Ocean from their neighborhood, Milliken's
Replat, in St. Johns County.
The Department issued an
"Exemption Notice" to the Applicants on March 30, 2011, that
stated as follows, in relevant part:
According to the description provided within
the request, the proposed work is to consist
of repair and maintenance of a dune
walkover, which would appear not to result
in disturbance to the dune system nor
require modification of the structure's
foundation. Therefore, the proposed work
appears to be exempt from the permitting
requirements of this Department pursuant to
section 161.053(11), Florida Statutes.
Please note that the work will have to be
conducted so as not to damage dune
topography or beach and dune vegetation, and
that the replacement of the walkover
structure or foundation members may require
a permit from the Department, either through
a field permit or an administrative permit
under chapter 62B-33.008, F.A.C. The
Department does not endorse the engineering
adequacy or safety of the proposed work.
3
On September 8, 2011, the Department issued an "Amended
Exemption Notification" that stated as follows, in relevant
part:
This is an amended letter in response to
your request received by the Department on
March 24, 2011, for a determination of
exemption from permit requirements for the
repair and maintenance of a dune walkover
structure at the above location.
According to the description provided by the
contractor, Rick Powell of Barefoot Marine,
the proposed work is to consist of repair
and maintenance of the portion of a dune
walkover located landward of the dune crest.
The repair and maintenance is to consist of
replacement of bolts, screws, plates and
other fasteners; replacement of wood members
such as handrails, posts above walkover deck
planks, deck planks and stringers; and
repairs to support members such as the
addition of sister posts next to existing
posts. Repair and maintenance activities
shall not result in the realignment or
reconfiguration of the walkover outside of
the extents of the original structure. With
the exception of the minimal ground
disturbance required to repair posts or to
add sister posts, no vegetation shall be
removed nor dune topography altered.
Based on the above description, the proposed
work is not expected to cause a measurable
interference with the natural functioning of
the coastal system. Therefore, the
Department has determined that the proposed
work satisfies the exemption requirements of
Section 161. 053 (11) (b), Florida Statutes.
All debris must be removed and disposed of
landward of the coastal construction control
line.
4
On October 7, 2011, Petitioner Amanda Pope filed a Petition
for Formal Administrative Hearing ("Pope Petition") contesting
the Department's decision to grant the exemption.
On
October 14, 2011, the Department forwarded the Pope Petition to
the Division of Administrative Hearings ("DOAH") for assignment
of an Administrative Law Judge and the conduct of a formal
hearing.
The matter was assigned DOAH Case NO. 11-5313.
On December 2, 2011, Petitioner Anastasia, Inc. filed a
Petition for Formal Administrative Hearing ("Anastasia
Petition") contesting the Department's decision to grant the
exemption.
On December 9, 2011, the Department forwarded ·the
Anastasia Petition to DOAH for assignment of an Administrative
Law Judge and the conduct of a formal hearing.
The matter was
assigned DOAH Case NO. 11-6248 and scheduled for hearing on
January 5, 2012.
On December 11, 2011, the Department filed a Motion to
Consolidate, which was granted by
o~der
dated December 20, 2011.
The final hearing was rescheduled for February 16, 2012.
On the
motion of Anastasia, Inc., the case was continued to April 17,
2012, on which date the hearing convened.
A second day of
hearing was scheduled for May 24, 2012, on which date the
hearing was completed.
At the outset of the hearing on April 17, 2012, Applicants
made an oral motion to dismiss, raising for the first time the
5
question of the timeliness of both the Pope Petition and the
Anastasia Petition.
The parties were given until April 27,
2012, to submit briefs on the issue.
By order dated May 2,
2012, the undersigned denied the Applicants' motion.
In their
Proposed Recommended Orders, Applicants and the Department
continue to argue that the petitions should be dismissed, but
have not persuaded the undersigned to change the conclusion
reached in the May 2, 2011 order. 1 /
At the opening of the final hearing, Joint Exhibits 1
through 20 were admitted into evidence by stipulation.
Petitioners presented the testimony of Amanda Pope; Kenneth
Pfrengle, the president of and stockholder in Anastasia, Inc.;
Christopher C. Kathe, accepted as an expert in structural
engineering; R. Brandt Wilson, accepted as an expert in
surveying; Nancy Lowe, a former resident of Milliken Lane; Paul
Linger, a resident of Milliken Lane; and DEP employees Trey
Hatch, James Martinello, Larry Teich, and Fritz Wettstein.
Petitioners' Exhibits 2 through 9, 11 through 16, 18 through 20,
24 through 27, 29, 31, and 43 through 46 were admitted into
evidence.
Applicants presented the testimony of Robert Morgan, a
structural engineer; Rick Powell of Barefoot Marine
Construction, the contractor for the proposed repairs to the
dune walkover; and Donna Grace, a resident of Milliken Lane.
6
Applicants' Exhibits 7, 8, 12 and 16 were admitted into
evidence.
The Department presented the testimony of Tony McNeal, the
administrator of the Department's CCCL program within the Bureau
of Beaches and Coastal Systems ("Bureau"), and accepted as an
expert in coastal engineering.
The Department's Exhibit 1 was
admitted into evidence.
A complete transcript of the proceeding was not ordered by
any of the parties.
Selected portions of the transcript were
filed at DOAR on July 3 and 5, 2012.
The Department filed two
motions for extension of the time for filing proposed
recommended orders, which were granted by orders dated July 17
and July 26, 2012.
All parties filed Proposed Recommended
Orders in keeping with the Order Granting Extension of Time
dated July 26, 2012.
The parties' submissions have been
considered in the preparation of· this Recommended.Order.
All references to the Florida Statutes are to the 2011
edition, unless otherwise noted.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the
final hearing and on the entire record of the proceeding, the
following findings of fact are made:
1.
The proposed project site is located at the seaward end
of Milliken Lane, in the development known as "Milliken's
7
Replat," in Crescent Beach, Florida. -The development consists
of 10 lots between State Road AlA and the Atlantic Ocean.
The
privately maintained Milliken Lane runs west to east,
perpendicular to AlA.
Milliken Lane bisects the 10 lots, i.e.,
five lots are on each side of the lane.
Lots 1 through 5 are on
the north side of Milliken Lane, and Lots 6 through 10 are on
the south side.
2.
Lots 5 and 6 are the largest lots and are the lots
nearest the ocean.
Petitioner Anastasia, Inc., owns Lot 5 and
Petitioner Amanda Pope owns Lot 6.
The sole officer and
shareholder of Anastasia, Inc., is Kenneth Pfrengle.
3.
The remaining eight lots are owned by Applicants, as
follows: Steven Frey owns Lot 1; Daniel and Donna Grace own Lot
2; Paul and Debra Linger own Lot 3; Ann Pastore owns Lot 4;
Lindsey Bramlitt and Jacqueline Porter, Trustees of the Land
Trust dated May 1, 2005, own Lot 7; Joseph and Linda Noftell own
Lot 8; Joseph and Dottie Scruggs own Lot 9; and Thompson and
Dana Filmer own Lot 10.
4.
Milliken's Replat was duly recorded on October 11,
1983, in the Public Records of St. Johns County, Florida, Map
Book 15, Page 100.
5.
The Milliken's Replat graphic representation of the
development shows a line between Lots 5 and 6 and indicates that
it is a "6' WIDTH WALKWAY FOR WALKWAY TO BEACH."
8
The indicated
walkway begins at the end of Milliken Lane and extends at least
to the CCCL.2/
The walkway straddles Lots 5 and 6, the two lots
owned by Petitioners.
6.
Milliken's Replat is also subject to a Road Maintenance
Agreement recorded by the original developers on January 28,
1994, in the Public Records of St. Johns County, O.R. 1034,
Page 1596.
The Road Maintenance Agreement provides for the
continuing maintenance of Milliken Lane and "That certain six
(6) foot wide walkway reflected on the plat running between the
cul-de-sac at the end of Milliken Lane to the Atlantic Ocean,
including existing dunes walk-over structure."
7.
The Road Maintenance Agreement goes on to provide as
follows, in relevant part:
2. Such road and walkway shall be
maintained by the parties to this agreement,
their heirs, successors and·assigns in a
condition so as to make it free and passable
in perpetuity.
3. The costs of the maintenance of said
road and walkway shall be shared to the end
that each lot owner shall pay one-tenth of
the cost associated with maintenance costs.
Owners of multiple lots shall be responsible
for one-tenth of the cost for each lot
owned.
*
*
*
S. In the event that sixty percent of the
lot owners determine that maintenance work
is necessary and contract to complete same,
they shall have the right to maintain a lien
against any lot owner who refuses to pay the
9
assessment pursuant to the provisions of
this agreement. Unless waived, each lot
owner shall be given a minimum of ten (10)
days' written notice of the proposed meeting
to determine assessments ....
8.
Petitioners purchased their respective lots subject to
the terms of Milliken's Replat and the Road Maintenance
Agreement.
·9.
On March 11, 2011, Applicant Dan Grace sent a notice to
the "Property Owners of Milliken Lane" stating that a meeting to
discuss the maintenance of Milliken Lane would take place on
March 24, 2011, pursuant to paragraph 5 of the. Road Maintenance
Agreement.
The notice went on to state that the walkover "is in
need of maintenance to maintain and preserve the integrity of
the existing walkover," and that a proposal for the cost of
repair would be presented at the meeting.
Finally, the notice
stated that a vote on the proposal would be taken at the
meeting.
10.
Mr. Grace contacted Rick Powell, owner of Barefoot
Marine Construction, to provide a quote for the repair and
maintenance of the dune walkover.
Mr. Powell visited the site,
took measurements, and provided a quote to Mr. Grace prior to
the March 24, 2011, meeting.
11.
On March 22, 2011, Daniel Mowrey, counsel for
Applicants, had a telephone conversation with West Gregory, an
attorney in the Department's office of general counsel,
10
regarding the proposed repair and maintenance to the dune
walkover.
12.
The next day, Mr. Mowrey followed up with a letter to
Mr. Gregory that included copies of Milliken's Replat and the
Road Maintenance Agreement.
The Applicants' chief concern was
Mr. pfrengle's contention that the repair of the walkover was
subject to his consent as the owner of the property on which the
walkover sits.
Mr. Mowrey stated his clients' position as
follows:
I believe the Department has taken the
position this matter has to do with Title
and/or Ownership to the property whereon
easement lies. This matter is clearly not
about ownership. The fact the easement· lays
on the property of Mr. Pfrengle and Amanda
Pope is not a matter of contention. There
is no authority I can find that forces the
Department to obtain permission from
Mr. Pfrengle or Ms. Pope to issue this
permit. The Road Maintenance Agreement
controls and is clear as to the rights of
all owners in the Milliken Replat. Denial
of a permit from the Department to maintain,
repair and/or replace the existing walkover
is unreasonable. All members of the
Milliken Replat have sufficient title
interest through the easement and Road
Maintenance Agreement to make application
based on recorded rights.
It appears the
Department has made the interpretation of
title interest as meaning right of
possession. This is clearly flawed.
I am fully aware
in Circuit Court
want to be clear
clients.
If the
this request for
that this matter may end up
to resolve this dispute.
I
in my representation of my
Department is going to deny
a permit, I would like to
11
know the legal justification for doing so.
The recorded documents are clear and speak
for themselves. While Mr. Pfrengle may not
want the walkover replaced, he agreed to the
provisions of the easement and Road
Maintenance Agreement when he purchased his
home as shown on the recorded instruments.
If my clients are required to fill out a
formal written request for a permit, please
notify me and provide the proper
documentation for that request.
13.
The owners' meeting was held on March 24, 2011,
pursuant to the March 11 notice.
All of the Applicants voted in
favor of the repairs and maintenance to the dune walkover,3/
making an eighty percent majority for the work to proceed.
Petitioners did not attend the meeting.
14.
Also on March 24, 2011, Mr. Gregory sent an email to
Mr. Mowrey that read as follows, in relevant part:
After discussing this matter with the
Department's permit processor and
Mr. Mowrey, it appears your proposed
activity may be eligible for an exemption.
If you would like to pursue an exemption
determination, please send a letter
requesting the exemption to the Bureau. The
items to include in the request are listed
in 62B-33. 008 (II). . . .
15.
Late on the afternoon of March 24, 2011, Mr. Mowrey on
behalf of his clients emailed a written request for an exemption
from the CCCL permit requirements to David Kriger, permit
manager for the Bureau.
12
16.
On March 30, 2011, the Department issued the Exemption
Notice quoted in the Preliminary Statement, supra.
17.
On. April 14, 2011, Rick Powell of Barefoot Marine
Construction provided a verbal description of the walkover
project to Fritz Wettstein, environmental manager of the CCCL
program.
The project plans included the use of "sister" posts
directly abutting and fastened to the existing posts to support
the repaired structure.
18.
Robert Morgan, a licensed professional engineer whose
company worked on the project for Barefoot Marine, testified
that the timber in the existing walkover was old, possibly
warped, and did not provide a pure nailing surface.
However,
the impact on the dune topography of pulling out the old posts
for replacement would have been "tremendous."
"Sistering" the
new posts to the old ones would provide the needed support while
minimizing environmental impact.
19.
On April 23, 2011, Mr. Morgan's company, RGM
Engineering, Inc., provided the Applicants with two sets of
structural drawings/engineering plans for the dune walkover, one
of which was accepted and ultimately built.
The plan that was
built was designed and measured to be an exact duplicate of the
existing walkover in all dimensions.
The second plan would have
lowered the rebuilt walkway, making it less visually obtrusive
to Mr. Pfrengle and Ms. Pope.
13
20.
On September 8, 2011, the Department issued the
Amended Exemption Determination quoted in the Preliminary
Statement, supra.
Based on Mr. Powell's project description,
the Department determined that the project was exempt pursuant
to section 161.053(11} (b), Florida Statutes.
21".
On September 16, 2011, Bureau field inspector Trey
Hatch conducted a site inspection of the proposed construction
area and beach dune system.
Mr. Hatch's written inspection
report stated that the existing walkover, "located within a 6'
easement area used by local neighborhood," appeared to be in
need of repair or replacement due to the age of the wood and
support hardware.
22.
Mr. Powell testified that his company waited 21 days
after the issuance of the Amended Exemption Determination before
commencing work on the walkover.
23.
Mr. Powell's company performed all the work.
digging of postholes was done by
machines.
~and,
The
without the use of
Only two workers were on the ground at a time, and
only those materials immediately required were carried to the
walkover.
Materials were passed up and down to the workers on
the structure to minimize disturbance to the dune system.
24.
Mr. Morgan testified that the new posts were placed
about five feet into the ground, to the depth of the old posts.
Nearly every old post was sistered to a new post, and most of
14
the walkover's structure was replaced.
Mr. Morgan stated that
the repaired walkway had a slightly larger east-west footprint
due to the sistered posts, but that the north-south footprint
was exactly the same as that of the old walkover.
25.
As noted above, the Department's Amended Exemption
Determination found the Applicants' project exempt pursuant to
section 161.053(11) (b), which provides:
Activities seaward of the coastal
construction control line which are
determined by the department not to cause a
measurable interference with the natural
functioning of the coastal system are exempt
from the requirements of subsection (4).4
26.
Florida Administrative Code Rule 62B-33.008 implements
section 161.053.
Subsection (11) of the rule provides
specificity to the exemption provided by section 161.053(11) (b)
as follows:
Requests for the Department to determine
that the proposed activity is exempt from
permitting pursuant to the provisions of
Section 161.053(11) (b), F.S., shall include,
at a minimum, a survey meeting the
requirements of Rule 62B-33.0081, F.A.C.,
and the information requirements of
paragraphs 62B-33. 008 (3) (1), (m), (n), (p),
(r), and subsection 62B-33.008(5), F.A.C.
The Department. recognizes that the
requirements specified above may not be
necessary to make an exemption
determination. In such cases, the applicant
shall, as part of the request for exemption,
identify those requirements and state the
reason why they are inapplicable. The
Department shall waive requirements that do
not apply.
15
27.
The "information requirements" of rule 62B-33.008
referenced in the quoted portion of the rule are as follows, in
relevant part:
(3) Any person desiring to obtain a permit
for construction seaward of the coastal
construction control line (CCCL) or 50-foot
setback from the Department . . . shall
submit two (2) copies of a completed'
application form to the Bureau . . . The
application shall contain the following
specific information:
*
*
*
(1) Two copies of a dimensioned site plan.
The drawings shall be signed and sealed by
an architect, engineer, landscape architect,
or professional surveyor and mapper (as
appropriate) licensed in the state of
Florida. The site plan shall include:
1. The locations and exterior dimensions of
all proposed structures, including
foundations and other activities, and the
bearings and distances from the CCCL or 50foot setback to the seaward corners of the
foundations of any major structures Or the
seaward limit of any coastal or shoreprotection structure.
2. Dimensions and locations of the
foundation outlines of any existing
structures on adjacent properties and
distances from the CCCL or 50-foot setback
to the seaward corners of the foundations of
any existing structures or the seaward limit
of any coastal or shore-protection
structure. These measurements shall include
all structures that the applicant contends
have established a reasonably continuous and
uniform construction line for permits
requested under the provisions of sections
161.052(2) (b) or 161.053(5) (b), F.S.
16
3. Dimensions and locations of the
foundation outlines of any existing
structures on the subject property and
distances from the CCCL or 50-foot setback
to the seaward corners of the foundations of
any major structures or the seaward limit of
any coastal or shore-protection structure.
4. The horizontal location "of the erosion
control line (if one exists), any contour
lines corresponding to elevation 0.00, the
approximate contour of mean high water and
the seasonal high water, and the horizontal
location of the seaward line of vegetation
and outlines of existing natural vegetation.
5. The horizontal location of the CCCL or
the 50-foot setback (if no CCCL is
established for the county in which the
property is located) for the full width of
the subject proper~y, including the location
and full stamping of the two nearest
Department or published second order or
higher horizontal control points.
6. The location and dimensions of the
property boundary, rights of way, and
easements, if any.
7. The property owner and project name,
street address, scale, north arrow, sheet
number, and date of drawings.
8. The location of work limits,
construction fences, and dune features and
vegetation to be protected during
construction.
(m) Two copies of a dimensioned grading
plan. The drawings shall be signed and
sealed by an architect, engineer, landscape
architect, or professional surveyor and
mapper (as appropriate) licensed in the
State of Florida. The grading plan shall
include:
17
1. Existing and proposed elevations,
contours and spot elevations.
2.
For any proposed excavation or fill:
a. A table of all permanent, temporary, and
net excavation and fill volumes seaward of
the CCCL;
b. The storage locations and description of
handling methods for all temporary
excavation and fill material; and
c. Soil and geotechnical data for beach
compatible imported or excavated material
proposed for placement on the beach seaward
of a frontal dune or on the sandy beach.
(n) Two copies of dimensioned crosssections . . The drawings shall be signed and
sealed by an architect, engineer, landscape
architect, or professional surveyor and
mapper (as appropriate) licensed in the
State of Florida. The cross-sections shall
include a typical view from the mean high
water line to the CCCL depicting all
structures and building elevations, proposed
and existing grades, subgradeconstruction,
excavation, fill, and elevations for any
proposed or existing rigid coastal
structures.
*
*
*
(p) Details, including engineering design
computations, for any proposed waste or
storm water discharge onto, over, under, or
across the beach and dune system, such as
storm water runoff, swimming pool drainage,
well discharge, domestic waste systems, or
outfalls. . .
(r) Two copies of detailed planting plans,
including the location of proposed. plants,
existing native vegetation, and plants to be
removed. Plans shall include a plant list
with both scientific and common names.
18
*
*
*
(5) The staff shall require the applicant
to provide other site specific information
or calculations as is necessary for proper
evaluation of the application. The
dimensions for the plans referenced in this
section shall be submitted in u.s. Customary
System units. Structures shall be located
with "distances measured perpendicular to the
control line, 50-foot setback line, or the
mean high water line, as appropriate. All
elevations in this rule shall be referenced
to NAVD 88 (U.S. survey foot). Site,
grading, drainage, and landscape plans as
well as cross-sections shall be drawn to a
scale no smaller than I" = 40' in the
horizontal dimension.
28.
Mr. Morgan testified that a survey was not required
for this project because the plan was simply to replace an
existing walkover that was already on the ground.
The existing
footprint would be maintained during construction.
Mr. Morgan
testified that because the project was being undertaken within
the confines of an existing structure, there was also no need
for a dimensioned site plan or a dimensioned grading plan.
29.
Mr. Morgan testified that it was necessary to provide
dimensioned cross-sections to ensure that the renovated walkover
conformed exactly to the dimensions of the existing walkover.
Those cross-sections were provided to the Department.
30.
Mr. Morgan testified that it was not necessary to
provide details, including engineering design computations, for
any proposed waste or storm water discharge onto or over the
19
beach and dune system because no impervious surface was being
added.
31.
Mr. Morgan testified that it was not necessary to
submit planting plans because the dunes were not being
disturbed.
32.
Mr. Morgan testified that no other site-specific
information or calculations were necessary for the exemption
application "because it was all straightforward.
There again,
it's an existing structure."
33.
Tony McNeal, the administrator of the CCCL program,
testified as an expert in coastal engineering.
Mr. McNeal also
addressed the criteria for obtaining an exemption pursuant to
rule 62B-33.008(11), and concluded that none of the items listed
in subsection (11) were necessary for the Department to
determine that the project would not cause a measureable
interference with the natural functioning of the coastal
34.
syst~m.
Petitioners offered no evidence that the requirements
of rule 62B-33.0081, paragraphs 62B-33.008(3) (I),
(m),
(n),
(p),
(r), or subsection 62B-33.008(5) were necessary to make an
exemption determination pursuant to section 161.053(11) (b).
The
evidence demonstrated that the Applicants identified which of
those requirements were inapplicable and why, and that the
Department waived the inapplicable requirements.
The
unchallenged testimony of Mr. Morgan and Mr. McNeal established
20
that the proposed project would not cause a measurable
interference with the natural functioning of the coastal
sys~em,
and that the criteria for the grant of an exemption from the
CCCL permitting requirements were met in this instance.
35.
However, the finding that the proposed project would
meet the exemption criteria of section 161.053(11} (b) does not
end the inquiry.
Petitioners contend that Applicants' project
is simply not the kind of project to which the section
161.053(11} (b) exemption provision is intended to apply.
Rather, this project was of the type contemplated by section
16l.053(11} (a), which provides in relevant part:
The coastal construction control
requirements defined in subsection (1) and
the requirements of the erosion projections
in subsection (5) do not apply to any
modification, maintenance, or repair of any
existing structure within the limits of the
existing foundation which does not require,
involve, or include any additions to, or
repair or modification of, the existing
foundation of that structure ....
36.
Petitioners contend that because it included
"additions to, or repair or modification of" the walkover
foundation, the project should have been required to seek a CCCL
permit.
Petitioners argue that the project as a whole
constituted a replacement of the existing walkover, not merely
repairs and maintenance.
As such, it was not the type of
activity that the Department should have considered for
21
exemption under section 161.053(11) (b).
Petitioners offered
documentation from the Department's files indicating that no
beach walkovers have been granted exemptions from the need to
obtain at least a field permit. 51
37.
Trey Hatch, a senior field inspector for the Bureau,
testified that he has never issued an exemption for a.dune
walkover.
He stated that he issues "quite a few" field permits
for walkover structures.
These include permits for new
walkovers, additions, and repair and rebuilding.
38.
Mr. Hatch stated that aboveground repairs to walkovers
typically do not require permits.
He testified that he has
issued field permits for such repairs in order to assist
homeowners in obtaining building permits from local authorities.
However, foundation modification such as digging holes,
replacing posts or modifying the structure outside its existing
dimensions would require a permit.
39.
Mr. McNeal testified that the Department regularly
issues permits for dune walkovers and has issued more than a
thousand such permits over the years.
To his knowledge, the
Department has never granted an exemption under section
161.053(11) (b) for a walkover structure prior to the instant
case.
Despite this lack of precedent, Mr. McNeal, who has been
the administrator in charge of the' CCCL program since 1998,
expressed confidence that a permit was not required for this
22
project because the proposed activity would not cause a
measurable interference with the natural functioning of the
coastal system.
40.
Petitioners contend that the walkover was not
"repaired" nor was it the subject of "maintenance."
They assert
that the walkover was replaced from the foundation up, and that
such replacement makes the Applicants' project ineligible for
exemption.
41.
Petitioners state that digging and setting of new
posts constituted modification of the foundation that required a
permit under section 161.053(11) (a).
that the
e~emption
The Department replies
was not granted pursuant to section
161.053(11) (a) but under the standard set forth in section
161.053(11) (b).
Therefore, Petitioners contentions regarding
the repair or replacement of the walkover's foundation are
irrelevant.
42.
In similar fashion, the Department dismisses
Petitioner's contention that the sistered posts violated Florida
Administrative Code rule 62B-34.050(19) (b), which provides:
Elevated walkovers that provide access to
the beach shall meet the following design
criteria:
*
I
*
*
(b) The piles for the walkover structure
shall not be greater that [sic] four by four
23
inch posts and shall not be encased in
concrete.
43.
Petitioners point out that by sistering the new four-
by-four posts to the existing four-by-four posts, Applicants
have created piles for the walkover structure that are now four
inches by eight inches, in excess of the maximum allowed by the
quoted rule.
However, the Department points out that the quoted
rule sets forth the conditions for general permits for
activities seaward of the CCCL, in particular for a new dune
walkover structure.
As such, the rule is irrelevant to a
consideration of whether the repairs to the already existing
walkover meet the specific criteria for an exemption pursuant to
section 161.053(11) (b) and rule 62B-33.008(11).
44.
Petitioners argue that" a form of estoppel should apply
to the Department's grant of an exemption in this case because
of prior Department actions regarding the same walkover.
In 2005, one of the Applicants in the instant case, Paul Linger,
obtained a field permit to repair the stairs on the walkover and
to install a cantilevered bench seat.
Controversy ensued when
both Ms. Pope and Mr. Pfrengle objected and insisted on removal
of the bench seat.
The Department ultimately decided that
Mr. Linger had installed the bench seat farther seaward than the
permit allowed, and that the seat extended beyond the easement
onto Ms. Pope's property.
Ms. Pope also raised the question
24
whether Mr. Linger had the authority to obtain the permit
without her permission.
45.
Jim Martinello, an environmental manager with the
Bureau, wrote as follows in a letter to Timothy J. Perry,
counsel for Ms. Pope, in a letter dated March 25, 2008:
In Mr. Perry's letter dated March 17, 2008,
he has advised Department staff that his
client, Amanda Pope, would be amenable to
remove the cantilevered seating area from
her property. Pursuant to section
161. 053 (12) (c) (6), Florida Statutes, 6/ the
removal of any existing structures or debris
from the upland, provided there is no
excavation or disturbance to the existing
topography or beach/dune vegetation is
exempt from the Department's permitting
requirements. The installation of the
handrail would also be considered an exempt
activity; however, be advised that if
Ms. Pope proposes to install a wooden post
into the ground, then the activity would no
longer be exempt and a Department permit
would be required. If, after removal of the
cantilevered seating area and placement of
the handrail, no additional compliance
issues are identified by staff, the file on
this matter will be closed.
Since the subject dune walkover is within an
easement, any future reconstruction or
repairs to the subject dune walkover must be
authorized with an administrative Coastal
Construction Control Line permit.
A Department field permit will not be
available for any future proposed activities
regarding the subject structure.
(emphasis added).
25
46.
In a follow-up letter dated June 19, 2008, noting that
the bench seat had been removed and the Department's file on the
matter had been closed, Mr. Martinello reiterated:
As previously stated, since the subject dune
walkover is within an easement, any future
reconstruction or repairs to the subject
dune walkover must be authorized with an
administrative Coastal Const~uction Control
Line permit. A Department field permit will
not be available for any future proposed
activities regarding the subject structure.
47.
With reason, Petitioners question why the Department's
representative cautioned Ms. Pope that the installation of a
single wooden post would trigger the need to obtain a permit
from the Department, but three years later the Department
determined that the installation of more than 30 posts on the
same walkover was exempt from permitting.
The letters clearly
state that any future reconstruction or repairs to this dune
walkover would require an administrative CCCL permit rather than
a mere field permit.
However, three years later, no permit
whatever was required for an extensive renovation of the same
walkover.
48.
At the hearing, Mr. Marintello testified that the
intent of his language regarding the need for a permit was
"informational."
He wanted to advise the parties that they
could not obtain a field permit for reconstruction because the
walkover was within an easement.
26
Mr. Martinello stated that the
Department had previously decided that it would be better to use
the administrative CCCL permitting process where an easement was
involved.
The greater scrutiny of that process would insure
that the applicant is eligible to obtain the permit.
49.
Mr. Martinello stated that he defers to the opinion of
Mr. McNeal and the Bureau permitting staff as to whether an
activity qualifies for an exemption.
He testified that he had
no intent for his letter to preclude anyone from ever obtaining
an exemption to perform work on. the walkover, and that in any
event he lacked the authority to make such a conclusive
pronouncement.
50.
The Department and Applicants strenuously argued that
any evidence not strictly addressing the criteria for exemption
under section 161.053(11) (b) is irrelevant to this proceeding.
In so arguing, they seek to avoid the threshold question of
whether section 161.053(11) (b) is the applicable provision for
repair or replacement of an existing structure such as a dune
walkover.
The testimony and the statute itself lead to the
finding that the specific provisions of section 161.053(11) (a),
not the general exemption language of section 161.053(11) (b),
should have been applied to the "modification, maintenance, or
repair" of this existing structure.
51.
When Mr. Morgan testified to justify the lack of need
for various items listed in rule 62B-33.008(11), he did so in
27
terms of section 161.053(11) (a): it was unnecessary to provide a
ground survey, dimensioned site plan, dimensioned grading
pl~n,
or other site specific information or calculations because the
project was staying within the confines of the existing
structure.
52.
The Department's own personnel made it clear that
their long practice has been to apply section 161.053(11) (a) to
alterations of dune walkovers.
Mr. Hatch testified that he has
never issued an exemption for a dune walkover, and that his
common practice is to issue field permits for dune walkovers.
In his experience, aboveground repairs to walkovers are exempt
and foundation modifications require a permit.
Mr. Hatch was
obviously referencing section 161.053(11) (a) in stating these
criteria.
53.
Mr. Martinello's letters cautioning Ms. Pope not to
install a wooden post in the ground were plainly premised on the
section 161.053(11) (a) limitation on changes to the foundation.
Mr. Martinello's testimony regarding his intent in writing the
letters was an unconvincing attempt to revise his views to
reflect the Department's new interpretation of the statute.
·54.
The Department's own expert, the
h~ad
of its CCCL
permitting program, Mr. McNeal, conceded the novelty of granting
a section 161.053(11) (b) exemption for a dune walkover.
28
He
could point to over one thousand walkover permits but not a
single walkover exemption during his long tenure at the Bureau.
55.
In summary, the Department misapplied the general
exemption criteria in section 161.053(11) (b) to a situation that
met the more specific criteria of section 161.053(11) (a).
Applicants should have been required to obtain either a permit
pursuant to section 161.053(11) (a) or a Department determination
that such a permit is not required because of the nature of the
work performed on the walkover.
56.
Finally, Petitioners raised the issue of whether
Applicants had the authority to obtain an exemption from the
Department.
Petitioners contended that neither Millken's Replat
nor the Road Maintenance Agreement authorized Applicants to
effect repairs on the walkover without express permission of the
property owners, Ms. Pope and Anastasia, Inc.
The Department
argued that it has no obligation to investigate ownership rights
prior to issuing an exemption.
Based on the foregoing finding
that the exemption was improvidently granted, there is no need
to address this issue at this time.
CONCLUSIONS OF LAW
57.
The Division of Administrative Hearings has
jurisdiction over the parties to and subject matter of this
cause, pursuant to section 120.569 and subsection 120.57(1),
Florida Statutes (2012).
29
58.
Petitioners are the owners of the property on which
the dune walkover is located.
Petitioners' substantial rights
or interests could reasonably be affected by the Department's
decision to grant an exemption to Applicants pursuant to section
161.053(11) (b), Florida Statutes.
Petitioners therefore have
standing to initiate this proceeding.
See St. Johns
Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist.,
54 So. 3d 1051, 1054-1055 (Fla. 5th DCA 2011); Peace
River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co.,
18 So. 3d 1079, 1082-1084 (Fla. 2d DCA 2009); Palm Beach Cnty.
Envtl. Coal. v. Fla. Dep't of Envtl. Prot., 14 So. 3d 1076, 1078
(Fla. 4th DCA 2009) .
59.
n[I]t is a well-recognized rule of statutory
construction that exceptions or provisos should be narrowly and
strictly construed. n
Samara Dev. Corp. v. Marlow, 556 So. 2d
1097, 1100 (Fla. 1990).
See also Robison v. Fix, 113 Fla. 151,
151 So. 512 (Fla. 1933); Pal-Mar Water Mgmt. Dist. v. Martin
County, 384 So. 2d 232, 233 (Fla. 4th DCA 1980); Armstrong v.
City of Tampa, 112 So. 2d 293, 298 (Fla. 2d DCA 1959).
As the
parties seeking an exemption determination pursuant to section
161.053(11) (b), Florida Statutes, Applicants bear the burden of
proving by a preponderance of the evidence that they have
established their entitlement to the exemption.
30
60.
Section 161.053(11) provides as follows, in relevant
part:
(11) (a) The coastal construction control
requiremeqts defined in subsection (1) and
the requirements of the eros~on projections
in subsection (5) do not apply to any
modification, maintenance, or repair of any
existing structure within the limits of the
existing foundation which does not require,
involve, or include any additions to, or
repair or modification of, the existing
foundation of that structure. Specifically
excluded from this exemption are seawalls or
other rigid coastal or shore protection
structures and any additions or enclosures
added, constructed, or installed below the
first dwelling floor or lowest deck of the
existing structure~ The Florida Building
Commission may not adopt any rule having the
effect of limiting any exceptions or
exemptions contained within this paragraph.
(b) Activities seaward of the coastal
construction control line which are
determined by the department not to cause a
measurable interference with the natural
functioning of the coastal system are exempt
from the requirements of subsection (4).
61.
Paragraph (a) of subsection (11) names a specific
exclusion from CCCL permit requirements: "any modification,
maintenance, or repair of any existing structure within the
limits of the existing foundation."
It then goes on to state a
specific circumstance that takes an existing structure beyond
the exclusion and into the need for a CCCL permit: "any
additions to, or repair or modification of, the existing
31
foundation of that structure."
Paragraph (b) of subsection
(11), on the other hand, references the general, undefined term
"activities."
62.
The facts do not admit of question that the dune
walkover at the end of Milliken Lane was an "existing
structure."
Any exemption from CCCL permitting for this
existing structure should have been accomplished through the
applicable paragraph (a).
The Department has simply ignored the
provision that specifically references "existing structures"
such as the dune walkover in favor of considering the
Applicants' proposal as an "activity."
63.
The "existing structures" substance of subsection
(11) (a) has been part of section 161.053 since 1975.7/
The
"activities" exemption language was added to the statute in
1998, without amendment of or reference to the "existing
structures" provision, save for renumbering it. 8/
It is clear
that, whatever the term "activities" covers, the Legislature did
not intend that it subsume "existing structures" in the manner
proposed by the Department in this proceeding.
64.
Even without regard to legislative intent, the rules
of statutory interpretation provide that the more specific
statutory provision controls over the more general.
n[A]
specific statute covering a particular subject area always
controls over a statute covering the same and other subjects in
32
more general terms.
The more specific statute is considered to
be an exception to the general terms of the more comprehensive
statute."
Heron at Destin West Beach & Bay Resort Condo. Ass'n,
Inc. v. Osprey at Destin West Beach & Bay Resort Condo. Ass'n,
Inc., et al., 94 So. 3d 623, 2012 Fla. App. LEXIS 10604, *19
(Fla. 1st DCA 2012)
46 (Fla. 1994)
65.
(quoting McKendry v. State, 641 So. 2d 45,
(internal citations omitted».
Applicants failed to prove their entitlement to an
exemption under section 161.053(11) (b), Florida Statutes.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions
of Law set forth herein, it is
RECOMMENDED that the Department of Environmental Protection
enter a final order denying the application of Daniel and Donna
Grace; Joseph and Linda Oftell; Paul and Debra Linger; Ann
Pastore; Thompson and Dana Fillmer; Joseph and Dottie Scruggs;
Stephen Frey; and Lindsey Bramlitt and 'Jacqueline Porter,
Trustees of the Land Trust dated May 1, 2005, for an exemption
from the requirements of coastal construction control line
("CCCL") permitting pursuant to section 161. 053 (11) (b), Florida
Statutes, for their proposed activities on a dune walkover
structure seaward of the coastal construction control line at
the end of Milliken Lane in St. Johns County.
33
DONE AND ENTERED this 5th day of October, 2012, in
Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
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 5th day of October, 2012.
ENDNOTES
The May 2, 2011, order may be found at:
http://www.doah.state.fl.us/DocDoc/2011/005313/110053130GEN050112-15361236.pdf
1/
2/
The drawing shows the path of the walkway extending all the
'way to the ocean, but the line indicating the "6' Width Walkway"
appears to extend only to the CCCL.
3/
Donna Grace testified that Stephen Fry was not present at the
meeting but that he had given her his proxy to vote in favor of
the proposal.
4/
Section 161.053(4} provides:
Except in those areas where local zoning and
building codes have been established
pursuant to subsection (3), a permit to
alter, excavate, or construct on property
seaward of established coastal construction
control lines may be granted by the
department as follows:
34
(a) The department may authorize an
excavation or erection of a structure at any
coastal location as described in subsection
(1) upon receipt of an application from a
property or riparian owner and upon the
consideration of facts and circumstances,
including:
1. Adequate engineering data concerning
shoreline stability and storm tides related
to shoreline topography;
2. Design features of the proposed
structures or activities; and
3. Potential effects of the location of the
structures or activities, including
potential cumulative effects. of proposed
structures or activities upon the beach-dune
system, which, in the opinion of the
department, clearly justify a permit.
(b) If in the immediate contiguous or
adjacent area a number of existing
structures have established a reasonably
continuous and uniform construction line
closer to the line of mean high water than
the foregoing,. and if the existing
structures have not been unduly affected by
erosion, a proposed structure may be
permitted along such line on written
authorization from the department if the
structure is also approved by the
department. However, the department may not
contravene setback requirements or zoning or
building codes established by a county or
municipality which are equal to, or more
strict than, the requirements provided in
this subsection. This paragraph does not
prohibit the department from requiring
structures to meet design and siting
criteria established in paragraph (a) or in
subsection (1) or subsection (2).
35
(c) The department may condition the
nature, timing, and sequence of construction
of permitted activities to provide
protection to nesting sea turtles and
hatchlings and their habitat, pursuant to s.
379.2431, and to native salt-resistant
vegetation and endangered plant communities.
(d) The department may require engineer
certifications as necessary to ensure the
adequacy of the design and construction of
permitted projects.
(e) The department shall limit the
construction of structures that interfere
with public access along the beach.
However, the department may require, as a
condition of granting permits; the provision
of alternative access if interference with
public access along the beach is
unavoidable. The width of the alternate
access may not be required to exceed the
width of the access that will be obstructed.
(f) The department may, as a condition of
granting a permit, require mitigation,
financial, or other assurances acceptable to
the department to ensure performance of
conditions of a.permit or enter into
contractual agreements to best assure
compliance with any permit conditions. The
department may also require notice of the
permit conditions required and the
contractual agreements entered into to be
filed in the public records of the county in
which the permitted activity is located.
5/
As the name suggests, a "field permit" may be issued by a
Bureau inspector at the site of the proposed activity, if the
inspector is satisfied that the activity is suitably minor and
will have only minor impacts. Fla. Admin. Code R. 62B33.008(10). Mr. McNeal testified that in cases requiring a
greater level of scrutiny, the Bureau requires the applicant to
obtain an "administratively issued" permit from its main office
in Tallahassee. Mr. McNeal also testified that field engineers
36
are not allowed to issue permits in cases where the project is
involved in litigation.
6/
This section was revised and renumbered as section
161.053(11) (c) (6) in 2010. See Ch. 2010-102, § 39, Laws of
Florida.
Chapter 75-87, section 2, Laws of Florida, added the
following subsection (8) to section 161.053:
7/
The setback requirements defined in
subsection (1) shall not apply to any
modification, maintenance, or repair, to any
existing structure within limits of the
existing foundation, which does not require,
involve, or include, any additions to,
repair or modification of, the existing
foundation of that structure. Specifically
excluded from this exemption are seawalls
and any additions or enclosures added,
constructed, or installed below the first
dwelling floor or lowest deck of the
existing structure.
8/
See Ch. 98-131,
§
2, Laws of Florida.
COPIES FURNISHED:
Timothy Joseph Perry, Esquire
Oertel, Fernandez, Bryant and Atkinson, P.A.
Post Office Box 1110
Tallahassee, Florida 32302
[email protected]
Brynna J. Ross, Esquire
Department of Environmental Protection
Majl Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
[email protected]
37
Alysson Hall Stevens, Esquire
Mowrey Law Firm,P.A.
515 North Adams Street
Tallahassee, Florida 32301
[email protected]
Kenneth Pfrengle
3884 Tampa Road
Oldsmar, Florida
34677
Daniel A. Mowrey, Esquire
Mowrey, Shoemaker and Beardsley
3940 Lewis Speedway, Suite 2103
St. Augustine, Florida 32084
Lea Crandall, Agency Clerk
Department of Environmental Protection
Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
[email protected]
Tom Beason, General Counsel
Department of Environmental Protection
Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
[email protected]
Herschel T. Vinyard, Jr., Secretary
Department of Environmental Protection
Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
[email protected]
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this Recommended Order. Any exceptions
to this Recommended Order should be filed with the agency that
will issue the Final Order in this case.
R
E eEl V E
38
o