00-004792 Rustic Hills Phase Iii Property Owners Association vs. Richard Olson, Mildred Olson, And Department Of Environmental Protection Status: Closed Recommended Order on Monday, July 30, 2001.

Summary: Homeowner association challenged neighbor`s use of noticed general permit to build bridges across creek winding through neighbor`s property. No adverse effect on navigation, off-site flooding; did not prove improper purpose; no award of attorney`s fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUSTIC HILLS PHASE III PROPERTY )

OWNERS ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 00-4792

)

RICHARD OLSON; MILDRED OLSON; )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

On May 24, 2001, an administrative hearing was held in this

case in Stuart, Florida, before J. Lawrence Johnston,

Administrative Law Judge (ALJ), Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Dan White, pro se

Rustic Hills Phase III

Property Owners Association

3337 Southwest Bessey Creek Trail

Palm City, Florida 34990

For Respondent DEP:

Francine Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

For Olsons : Tim Morell, Esquire

1933 Tom-a-Toe Road

Lantana, Florida 33426

STATEMENT OF THE ISSUES

The issues in this case are: (1) whether proposals by

Richard and Mildred Olson to widen an existing bridge

(designated Bridge 1) and construct two new pedestrian bridges

(designated Bridges 2 and 4) across Bessey Creek in Martin

County, Florida, qualify for the Noticed General Permit

established by Rule 62-341.475; and (2) whether Petitioner

participated in this proceeding for an improper purpose under

Section 120.595(1). (Citations to sections are to the 2000

codification of Florida Statutes. Rule citations are to the

current Florida Administrative Code.)

PRELIMINARY STATEMENT

On May 24, 2000, the Olsons applied to use the Noticed

General Permit (NGP) established by Rule 62-341.475 for their

proposals and for authorization to use state-owned submerged

lands (for bridge pilings). Their application was given DEP

File No. 43-0137548-002. Subsequently, DEP determined that two

applications were required because the proposals were associated

with different lots owned by the Olsons; and on September 7,

2000, DEP created a second application for the two bridges

associated with lot 191 (Bridges 1 and 2). The second

application was given DEP File No. 43-0158123-002.

On November 1, 2000, DEP sent the Olsons a letter informing

them that their projects qualified for use of the NGP and for a

State Programmatic General Permit (signifying compliance with

any applicable federal requirements) but that the private

easements were not being granted pending submission of

additional information.

On November 20, 2000, Petitioner, Rustic Hills Phase III

Property Owners Association (POA), through its officers,

requested an administrative hearing on DEP's intended actions.

Petitioner complained that the proposed bridges "create a

potential for upstream flooding." They complained that Bridge 1

and another existing pedestrian bridge (Bridge 3) connecting

Olson property on either side of Bessey Creek were in disrepair

and created flooding risk which the proposals would exacerbate

if the proposed new bridges were allowed to fall into similar

disrepair. They also complained that the existing bridges were

lower than depicted in application drawings. They requested

that the existing bridges be repaired or demolished. Finally,

citing Rule 18-21.010, Petitioner contended that the Olsons did

not establish that their proposals were not contrary to the

public interest.

DEP referred the request for hearing to DOAH, where it was

given DOAH Case No. 00-4792, and an Initial Order was issued on

December 4, 2000. Neither party responded to the Initial Order.

Upon inquiry, counsel for DEP informed DOAH that the parties had

not received the Initial Order, and an Amended Initial Order was

issued on March 23, 2001. On April 26, 2001, the Olsons '

environmental consultant filed a letter complaining that

Petitioner had not coordinated a response to the Amended Initial

Order, but no party complied with the Amended Initial Order

until May 1, 2001, when DEP and the Olsons filed a joint

response indicating their inability to get input from

Petitioner.

Based on the joint response by DEP and the Olsons, final

hearing was scheduled for May 24, 2001, in Stuart, Florida. An

Order of Pre-Hearing Instructions also was entered requiring the

parties to : exchange witness lists and copies of exhibits, and

file their witness lists, by May 14, 2001; and discuss

settlement by May 18, 2001.

Petitioner and the Olsons timely filed their witness lists.

DEP did not file a witness list, and there was no indication or

evidence that DEP exchanged exhibits or witness lists.

On May 18, 2001, the Olsons' consultant filed a copy of a

letter to Petitioner documenting his request to discuss

settlement with Petitioner. There was no indication or evidence

that DEP attempted to discuss settlement.

Counsel made an appearance for the Olsons in place of their

consultant on May 23, 2001, the day before final hearing.

At final hearing, it was established that DEP had no

jurisdiction to require demolition or repair of existing bridges

in this proceeding, and Petitioner agreed to withdraw any such

request for relief. (Petitioner conceded that those issues, as

well as perhaps others, were being raised in County permit

proceedings and may not have been relevant to this

administrative proceeding.) It also was established that issues

relating to the "public interest" test under Rules Chapter 21-18

were premature since DEP had not yet proposed to grant private

easements for the proposed projects. Petitioner then attempted

to raise water quality issues relating to excrement from Olson

livestock crossing the bridges (apparently one of the issues

being raised in County permit proceedings), but no such issue

was raised in Petitioner's request for hearing, and Petitioner

was not permitted to add it at final hearing.

After opening statements, the Olsons called: Dan White,

President of the POA, as an adverse party witness; Bruce Jerner,

their environmental consultant; and Richard Olson. They also

had Olsons' Exhibits 1 (A-F), 2 (A-D), 3, 4, and 5 admitted in

evidence. DEP called Darrell Deleeuw, Environmental Specialist

II, and had DEP Exhibits 1 and 2 (the application files)

admitted in evidence. White testified for Petitioner, which

offered no exhibits in evidence. The Olsons recalled Jerner in

rebuttal, and White testified again in surrebuttal.

After presentation of evidence, the Olsons moved ore tenus

for attorney fees and costs but they were required to file a

motion, and the other parties were given an opportunity to

respond. It was indicated that jurisdiction would be reserved

to rule on the motion.

The Olsons requested a transcript of the final hearing, and

the parties were given ten days from the filing of the

transcript in which to file proposed recommended orders (PROs).

The Transcript was filed on June 1, 2001. The Olsons and

DEP timely filed PROs; Petitioner did not file a PRO.

On June 15, 2001, the Olsons filed a Motion for Attorney's

Fees under both Section 120.595(1) and Section 120.569(2)(e).

Citing statements in DEP's PRO, the Motion for Attorney's Fees

stated that DEP "would join in the Olsons' motion for

sanctions."

DEP did not file a response to the Motion for Attorney's

Fees. However, as indicated in the Olsons' motion, DEP stated

in its PRO that it "joins in that motion." Petitioner did not

file a response to the Olsons' motion in the time allotted by

Rule 28-106.204(1). But on July 3, 2001, counsel made a limited

appearance for Petitioner for the purpose of responding to the

Motion for Attorney's Fees and asked for permission to file

Petitioner's late response in opposition.

On July 12, 2001, the Olsons filed a reply in opposition to

Petitioner's response on both procedural grounds (lateness) and

substantive grounds (lack of merit). DEP has not filed a

response to Petitioner's request for permission to file a late

response to the Olsons' motion. Permission to file the late

response is granted, and the response has been considered.

FINDINGS OF FACT

1. Richard and Mildred Olson own property in Rustic Hills

Phase III in Martin County, Florida. The Olsons own lots 191,

192, 195, 212, 213, and 214. Each lot is approximately two

acres in size. The Olson home is on lot 213, and a rental home

is on lot 195. On their property, the Olsons raise miniature

goats, guinea hens, and peacocks; they also have ducks, geese,

chickens, and dogs.

2. Bessey Creek winds through Rustic Hills and the Olsons'

lots. The Olsons propose to use DEP's NGP for Minor Activities

established by adoption of Rule 62-341.475 to widen one existing

bridge and construct two others for access to their property

across Bessey Creek.

3. Bessey Creek is a tributary of the St. Lucie River,

through man-made Canal 23. Navigating upstream on Bessey Creek,

a boat would have to pass under the Murphy Road Bridge, which is

9 feet, one inch above mean high water (MHW), just before

reaching the first of the four bridges involved in this case,

Bridge 1. Bridge 1 is a steel span bridge (with no pilings in

the water) that connects two portions of lot 191, which is split

by the creek. The Olsons propose to widen existing Bridge 1.

It is not clear from the evidence whether pilings will be

required to widen Bridge 1. But it seems clear that a

centerline stream clearance (horizontal width) of 16 feet and a

bridge height above mean high water (MHW) (vertical clearance)

of 9 feet will be maintained.

4. Proposed pedestrian Bridge 2 is the next bridge

upstream, at a point where the creek is only approximately 24

feet wide from MHW to MHW. It is designed to be a 192 square

foot piling-supported bridge, with an 8-foot wide by 24-foot

long walkway. To support Bridge 2, sets of pilings will placed

in the creek bed so as to maintain a centerline stream clearance

of 16 feet. The proposed vertical clearance for Bridge 2 is 8

feet above MHW.

5. Existing Bridge 3, the next upstream, is at a point

where the creek is approximately 35 feet wide from MHW to MHW.

Bridge 3 is a wooden bridge approximately 25 years old. It

connects lots 192 and 193 to lot 191. The Olsons use existing

Bridge 3 on a daily basis. Bridge 3 was built to span the

creek; later, two sets of wooden piles were added. There is a

centerline stream clearance of 13 feet between the piles.

Vertical clearance is 8 feet above MHW.

6. Proposed pedestrian Bridge 4, the farthest upstream, is

designed in the same manner as proposed pedestrian Bridge 2. It

is located at a point where the creek is approximately 35 feet

wide from MHW to MHW. Bridge 4 will connect lots 195 and 212.

Navigability

7. Proposed pedestrian Bridges 2 and 4 are designed to

have the same 8-foot vertical clearance as existing Bridge 3;

they are designed to have three feet more horizontal clearance

than existing Bridge 3. Neither they nor widened Bridge 1 will

restrict navigation as much as existing structures, natural

conditions (including numerous fallen trees, underwater snags

and low, overhanging vegetation), and docked boats. The United

States Coast Guard and the Florida Fish and Wildlife

Conservation Commission (FFWC) concur that the bridges would not

have any deleterious effect on the navigation in this area of

Bessey Creek.

8. While not specifically alleging impedance of

navigation, Petitioner alleged that existing Bridges 1 and 3 are

lower than measured by the Olsons' environmental consultant.

But there was no evidence to support such a finding. Meanwhile,

the Olsons' consultant explained how he determined the vertical

clearance of those bridges above MHW by measurements adjusted

for MHW using NOAA tide charts.

9. Even if existing Bridges 1 and 3 had less vertical

clearance than determined by the Olsons' consultant, Bridges 2

and 4 are designed to have the same vertical clearance as the

consultant determined Bridge 3 to have. For that reason, even

if the consultant's determinations were incorrect, the vertical

clearances of Bridges 2 and 4 are designed to be the same as the

vertical clearance of Bridge 3, and the vertical clearance of

Bridges 2 and 4 will not impede navigation any more than

Bridge 3.

Flooding

10. Bessey Creek is a typical tidal creek. It has low

volume and low velocity. Being influenced by tidal ebb and

flow, its flow is not continuously downstream except during and

just after times of high precipitation, such as hurricanes.

Under these conditions, build-up of debris around pilings of

these bridges would not be expected, and none was observed

around at the existing bridges. The chances of vegetation or

organic matter building up over time in the area of these

bridges to create a beaver dam effect and cause flooding are

small.

11. The proposed new pedestrian bridges have four pilings,

which is typically less than a single-family dock. The pilings

of a single-family dock are closer to the shoreline and,

particularly with a boat alongside, would have more potential to

trap debris and cause flooding than the proposed bridges. The

same can be said of the fallen trees and low, overhanging

vegetation existing under natural conditions in Bessey Creek.

12. The proposed bridges are not expected to have an

adverse impact of a significant nature with respect to off-site

flooding.

13. Petitioner did not present any expert testimony

regarding allegations of off-site flooding potential. Dan White

testified as a lay person that flooding occurs in the area

during times of high precipitation and that Petitioner was

concerned that the proposed bridges would exacerbate those

conditions. But, while the evidence was clear that flooding is

a condition to be expected under certain conditions in low-lying

areas like Rustic Hills Phase III, White failed to make any

causal connection between existing periodic flooding and the

bridges, existing or proposed.

Improper Purpose

14. Petitioner's request for hearing, by letter dated

November 16, 2000, thanked DEP for "this opportunity to contest

the granting of a Noticed General Permit to the Olson's [sic]"

and also requested "an Administrative Review to ensure your

department has all the information needed to make a fair

decision regarding this matter." It also requested: "Since we

are a small community, I hope the Department will review this

petition in light of the author's lack of familiarity with the

specific form and format used by the environmental consultants

and those who work with you on a regular basis." Petitioner

"respectfully submit[ted] the following information which is

required to dispute the Department's actions and to request an

Administrative hearing if necessary." In response to

Petitioner's letter, DEP referred the matter to DOAH.

15. Apparently, Petitioner (and the other parties) did not

receive a copy of the Initial Order. Petitioner, which was not

represented by counsel at the time, failed to comply with the

Amended Initial Order entered on March 23, 2001. But apparently

neither did the Olsons, who also were not represented by counsel

at the time, or DEP, which was. The Olsons complained by letter

filed April 26, 2001, that Petitioner had not contacted them.

But there was no indication or evidence that, up to that point

in time, the Olsons attempted to contact Petitioner or DEP, or

that DEP attempted to contact Petitioner or the Olsons, in

response to the Amended Initial Order.

16. The Joint Response to Initial Order filed by the

Olsons and DEP on May 1, 2001, recited that Petitioner's contact

person-of-record, Treasurer Jim Fyfe, "no longer was associated

with Rustic Hills" and that Petitioner's President, Dan White,

was "out of town and could not be reached." Based on the Joint

Response to Initial Order filed by DEP and the Olson's, final

hearing was scheduled for May 24, 2001.

17. The Order of Pre-Hearing Instructions entered along

with the Notice of Hearing on May 3, 2001, required that the

parties exchange witness lists and copies of exhibits and file

their witness lists by May 14, 2001. Petitioner complied with

the requirement to file a witness list and also included a list

of exhibits. There was no indication or evidence that

Petitioner did not exchange exhibits as well.

18. The Order of Pre-Hearing Instructions also required:

"No later than May 18, 2001, the parties shall confer with each

other to determine whether this cause can be amicably resolved."

When the Olsons' environmental consultant, Bruce Jerner, went to

Dan White's home on May 14, 2001, to provide him a copy of the

Olsons' exhibits, he invited White to discuss settlement in

accordance with the Order of Pre-Hearing Instructions. White

responded to the effect that, even if Petitioner did not have a

strong case, Petitioner preferred to go to hearing, and White

did not want to mediate or discuss settlement with Jerner. At

that point, Jerner indicated that he would be sending White a

letter confirming the Olsons' attempt to comply with the Order

of Pre-Hearing Instructions. The letter dated the next day

requested "an informal conference to determine whether the above

referenced case can be amicably resolved and avoid hearing

proceedings."

19. Significantly, there was no indication or evidence

that DEP complied with the Order of Pre-Hearing Instructions in

any respect. It appears that DEP distanced itself from the

dispute between Petitioner and the Olsons, preferring to allow

them to settle or litigate as they saw fit. In view of DEP's

noncompliance, DEP at least certainly may not rely on

Petitioner's noncompliance as a ground for an award of attorney

fees and costs. In addition, while DEP's noncompliance does not

excuse Petitioner from complying, it helps put Petitioner's

actions in context and is relevant on the question whether

Petitioner's noncompliance was evidence of improper purpose. In

this regard, White testified to his belief that he had complied

with all ALJ orders but did not "know why I would be obligated

to respond to the consultant for Mr. Olson with regard to

hearing or any other matters."

20. While DEP and the Olsons in part cite Petitioner's

failure to follow prehearing procedures, they primarily rely on

the weakness of Petitioner's presentation at final hearing and

posthearing efforts as evidence of improper purpose. But this

evidence must be evaluated along with other factors resulting in

the weakness of Petitioner's case.

21. Not only did White misinterpret the Order of Pre-

Hearing Instructions, the evidence indicated that he was

unfamiliar with the administrative process in general and also

was confused about the difference between the administrative

hearing scheduled for May 24, 2001, and the County permitting

proceedings on the bridges which also were on-going. White

indicated repeatedly during final hearing that he and Petitioner

had just recently learned more about distinctions between the

administrative and County permit proceedings. As a result,

White was beginning to recognize that several issues Petitioner

had attempted to raise in this administrative proceeding may be

relevant to on-going County permit proceedings but not this

administrative proceeding.

22. When it was established and explained at final hearing

that DEP had no jurisdiction to require demolition or repair of

existing bridges in this proceeding, White agreed to withdraw

that part of Petitioner's request for relief. When it was

established and explained that issues Petitioner raised relating

to the "public interest" test under Rules Chapter 21-18 were

premature, White did not object to those issues being dropped.

Later, when Petitioner attempted to raise water quality issues

relating to excrement from Olson livestock crossing these

bridges, and it was ruled that no such issue was raised in

Petitioner's request for hearing, White accepted the ruling.

23. Final hearing proceeded on the only remaining issue

specifically raised by Petitioner (alleged off-site flooding)

(together with navigability--an issue addressed in the Olsons'

presentation but not raised in Petitioner's request for

hearing). To use White's words, Petitioner did not "have a very

sophisticated presentation." Petitioner had no expert

testimony, and White's lay testimony did not make a causal

connection between flooding and the bridges.

24. After the presentation of evidence, Petitioner did not

withdraw its request for hearing in view of the evidence

presented; but, in fairness, neither was Petitioner asked to do

so. Petitioner did not order a Transcript, or a copy after the

Olsons ordered a Transcript, and did not file a PRO.

25. It is fairly clear from the evidence that Petitioner

did not participate in this proceeding primarily to cause

unnecessary delay. Even if Petitioner had never requested a

hearing, the Olsons did not have all of the authorizations

required of DEP for their proposals. In addition, County

permits apparently also are required.

26. It seems reasonably clear that, had Petitioner

retained a competent expert to evaluate its case, the expert

probably would have advised Petitioner that it would not be able

to make a causal connection between flooding and the bridges.

Had Petitioner retained counsel prior to final hearing, counsel

probably would have advised Petitioner not to proceed with its

request for hearing because, without a causal connection between

flooding and the bridges, Petitioner would not be able to

prevail. But there was no indication or evidence that

Petitioner had and disregarded the benefit of professional

advice.

27. Under the totality of these circumstances, it was not

proven that Petitioner's participation in this proceeding was

for an improper purpose-- i.e. , primarily to harass or to cause

unnecessary delay or for frivolous purpose or to needlessly

increase the cost of licensing or securing the approval of the

Olsons' applications.

CONCLUSIONS OF LAW

28. Rule 62-341.201 sets out the policy and purpose of

noticed general permits (NGPs). Rule 62-341.215 sets out the

general conditions for all NGPs. Rule 62-341.475 establishes a

NGP for minor activities. As provided in Subsection (1)(a)-(c)

of the rule, the Olsons' proposals are eligible for this NGP.

29. Rule 62-341.475(2) states in pertinent part that, in

order to qualify for this NGP, an applicant must provide

reasonable assurance that the proposed system:

(a) does not significantly impede

navigation and does not entail the

construction of a structure for the

launching or mooring of a boat when

navigational access to the structure does

not currently exist; describes the minor

systems to which it applies.

(b) does not cause a violation of state

water quality standards;

(c) does not impede the conveyance of a

stream, river or other watercourse in a

manner that would increase off-site flooding

. . ..

30. The NGP, with all permit conditions, are set out in

the above-cited rules. The only issue presented in this case is

whether the Olsons have qualified for the NGP by providing the

requisite assurance. See D'Antoni v. Dept. of Environmental

Protection and Boston , 2000 WL 1176609 (Fla. Dept. Env. Prot.),

22 FALR 2879 (2000); Castoro, et al. v. Palmer and Dept. of

Environmental Protection , 1998 WL 901857 (Fla. Dept. Env.

Prot.).

31. Petitioner never raised Subsection (2)(b) of the rule

before final hearing, and it was waived. Petitioner did not

specifically raise Subsection (2)(a) before final hearing, but

the Olsons addressed it and provided reasonable assurance. The

Olsons also provided reasonable assurance as to Subsection

(2)(c), the only part of the rule raised in the request for

hearing.

32. Petitioner also requested a hearing on the "public

interest" test in Rules Chapter 18-21, but DEP did not grant the

Olsons a private easement yet, and Petitioner's challenge is

premature.

33. DEP and the Olsons have moved for attorney's fees and

costs under Sections 120.569(2)(e) and 120.595(1). Jurisdiction

will be reserved to determine the request under Section

120.569(2)(e) because DOAH has jurisdiction to enter the final

order under that statute . See Procacci Commercial Realty, Inc.

v. Dept. of Health and Rehab. Services , 690 So. 2d 603, 606

(Fla. 1st DCA 1997); Dept. of Health and Rehab. Services v.

S.G. , 613 So. 2d 1380, 1384-85 ( Fla. 1st DCA 1993) . Under

Section 120.595(1), the procedures (and, to some extent,

substantive law) are different.

34. Section 120.595(1) provides in pertinent part:

(a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administrative proceedings.

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c) In proceedings pursuant to

s. 120.57(1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

defined by this subsection and s.

120.569(2)(e). In making such

determination, the administrative law judge

shall consider whether the nonprevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position asserted in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailing

adverse party participated in the pending

proceeding for an improper purpose.

(d) In any proceeding in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney's fees.

(e) For the purpose of this subsection:

1. "Improper purpose" means

participation in a proceeding

pursuant to s. 120.57(1) primarily

to harass or to cause unnecessary

delay or for frivolous purpose or

to needlessly increase the cost of

licensing or securing the approval

of an activity.

(Emphasis added.)

35. The "definition" of improper purpose in Section

120.569(2)(e) is not identical to the definition in Section

120.595(1)(e)1. Section 120.569(2)(e) provides that signatures

on pleadings, motions, or other papers certify that the

signatory has read the document and that "based upon reasonable

inquiry, it is not interposed for any improper purposes, such as

to harass or to cause unnecessary delay, or for frivolous

purpose or needless increase in the cost of litigation."

36. Construing the definition in Section 120.595(1)(e)1 in

pari materia with the "definition" in Section 120.569(2)(e), it

is concluded that Section 120.595(1) only references the

examples of improper purposes cited in Section 120.569(2)(e) but

that participation in a proceeding is for an improper purpose

under Section 120.595(1) only if it is " primarily to harass or

to cause unnecessary delay or for frivolous purpose or to

needlessly increase the cost of licensing or securing the

approval of an activity." (If such a limitation on the

definition is not part of Section 120.569(2)(e), Section

120.595(1)(a) provides that its provisions are "supplemental to,

and do not abrogate, other provisions allowing the award of fees

or costs in administrative proceedings.")

37. There is no evidence or indication that the rebuttable

presumption of improper purpose created by Section 120.595(1)(c)

applies in this case.

38. Case law holds that an objective standard is used to

determine improper purpose for the purpose of imposing sanctions

on a party or attorney under Section 120.569(2)(e) and

predecessor statutes. As stated in Friends of Nassau County,

Inc. v. Nassau County , 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000):

In the same vein, we stated in Procacci

Commercial Realty, Inc. v. Department of

Health and Rehabilitative Services , 690

So.2d 603 (Fla. 1st DCA 1997): The use of

an objective standard creates a requirement

to make reasonable inquiry regarding

pertinent facts and applicable law. In the

absence of "direct evidence of the party's

and counsel's state of mind, we must examine

the circumstantial evidence at hand and ask,

objectively, whether an ordinary person

standing in the party's or counsel's shoes

would have prosecuted the claim."

Id. at 608 n. 9 (quoting Pelletier v.

Zweifel , 921 F.2d 1465, 1515 (11th

Cir.1991)). See In re Sargent , 136 F.3d

349, 352 (4th Cir.1998) ("Put differently a

legal position violates Rule 11 if it 'has

"absolutely no chance of success under the

existing precedent." ') Brubaker v. City of

Richmond , 943 F.2d 1363, 1373 (4th

Cir.1991)(quoting Cleveland Demolition Co.

v. Azcon Scrap Corp. , 827 F.2d 984, 988 (4th

Cir.1987))."

* * *

Whether [predecessor to Section 120.595(1)]

section 120.57(1)(b)5., Florida Statutes

(1995), authorizes sanctions for an initial

petition in an environmental case turns

. . . on the question whether the signer

could reasonably have concluded that a

justiciable controversy existed under

pertinent statutes and regulations. If,

after reasonable inquiry, a person who

reads, then signs, a pleading had

"reasonably clear legal justification" to

proceed, sanctions are inappropriate.

Procacci , 690 So.2d at 608 n. 9; Mercedes ,

560 So.2d at 278.

Although there is no appellate decision explicitly extending the

objective standard to Section 120.595(1), there does not appear

to be any reason why, absent the rebuttable presumption, the

objective standard should not be used to determine whether

Petitioner's participation in this proceeding was for an

improper purpose. See Friends Of Nassau County, Inc., v. Fisher

Development Co., et al. , 1998 WL 929876 (Fla. Div. Admin.

Hrgs.); Amscot Insurance, Inc., et al. v. Dept. of Ins. , 1998 WL

866225 (Fla. Div. Admin. Hrgs .).

39. In another appellate decision, decided before the

objective standard was enunciated for cases under Section

120.569(2)(e) and its predecessor statutes, the court in Burke

v. Harbor Estates Ass'n , 591 So. 2d 1034, 1036-1037 (Fla. 1st

DCA 1991), held:

The statute is intended to shift the cost of

participation in a Section 120.57(1)

proceeding to the nonprevailing party if the

nonprevailing party participated in the

proceeding for an improper purpose. A party

participates in the proceeding for an

improper purpose if the party's primary

intent in participating is any of four

reasons, viz: to harass, to cause

unnecessary delay, for any frivolous

purpose, [FN1] or to needlessly increase the

prevailing party's cost of securing a

license or securing agency approval of an

activity.

Whether a party intended to participate in a

Section 120.57(1) proceeding for an improper

purpose is an issue of fact. See Howard

Johnson Company v. Kilpatrick , 501 So.2d 59,

61 (Fla. 1st DCA 1987) (existence of

discriminatory intent is a factual issue);

School Board of Leon County v. Hargis , 400

So.2d 103, 107 (Fla. 1st DCA 1981)

(questions of credibility, motivation, and

purpose are ordinarily questions of fact).

The absence of direct evidence of a party's

intent does not convert the issue to a

question of law. Indeed, direct evidence of

intent may seldom be available. In

determining a party's intent, the finder of

fact is entitled to rely upon permissible

inferences from all the facts and

circumstances of the case and the

proceedings before him.

FN1. A frivolous purpose is one which is of

little significance or importance in the

context of the goal of administrative

proceedings. Mercedes Lighting & Electrical

Supply, Inc. v. Department of General

Services , 560 So.2d 272, 278 (Fla. 1st DCA

1990).

40. Burke also is of particular interest because it

involves facts similar to, but not identical with, the facts of

this case. According to Burke , the hearing officer found:

6. Petitioner . . . submitted no evidence

to show facts necessary to sustain the

pleadings in the Petition. . . . Petitioner

offered no expert testimony in support of

the pleadings in the Petition. . . . The

testimony of fact witnesses called by

Petitioner was not material to Petitioner's

claims. . . .

7. Petitioner consistently demonstrated a

lack of knowledge of the applicable law, the

proper scope of the formal hearing, and the

distinction between argument and evidence.

Petitioner repeatedly attempted to establish

violations of laws not relevant to the

proceeding. . . . Petitioner attempted to

establish issues by arguing with witnesses

during direct and cross-examination, and by

repeatedly making unsworn ore tenus

representations of fact.

8. There was a complete absence of

justiciable issue of either law or fact in

this proceeding because petitioner failed to

show facts necessary to sustain the

pleadings. Petitioner presented no evidence

refuting Respondent, Burke's, showing that

the modifications required by DER were

adequate to assure water quality and the

public health, safety, or welfare, or the

property of others. Evidence presented by

Petitioner was not material to the issue of

whether the modifications required by DER

were adequate for the purposes of the law

applicable to this proceeding. Therefore,

Petitioner participated in this proceeding

for a frivolous purpose, primarily to cause

unnecessary delay, or to needlessly increase

the cost of licensing or approval of the

proposed activity.

Id. at 1035-1036. (For reasons unknown, there are minor

discrepancies between the court's version of the findings and

those appearing at Harbor Estates Associates, Inc. v. E. Burke,

et al. , 1990 WL 749394 (Fla. Div. Admin. Hrgs.), and at DOAH's

Internet website, Recommended Order, DOAH Case No. 89-2741,

entered April 4, 1990.) In Burke , the Department of

Environmental Regulation (predecessor to DEP) accepted the

hearing officer's findings as to Petitioner's conduct but

reversed the hearing officer's award, holding "that the conduct

described in the recommended order cannot, as a matter of law,

evince an improper purpose as defined in Section 120.59(6),

Florida Statutes." Burke at 1037. The court reversed, holding:

Despite acceptance of factual findings

below, the final order characterizes the

conduct of Harbor Estates' representative as

mere "incompetent representation." We

reject that characterization as not

consistent with the hearing officer's

findings and, therefore, do not here decide

whether incompetent representation alone

permits a finding of improper purpose.

* * *

We reject appellees' argument that a

qualified lay representative in a Section

120.57 proceeding should be held to a lesser

standard of conduct, as distinguished from

legal competence, than a licensed attorney.

Section 120.62(2), Florida Statutes,

permitting qualified lay representatives to

represent parties in administrative

proceedings, provides no basis for holding

such representatives to a lesser standard of

conduct. A contrary rule would permit a

party to insulate itself from the

consequences of Section 120.59(6), Florida

Statutes, by choosing lay representation.

Id. at 1037-1038.

41. As indicated, the facts in Burke were similar to, but

not identical with, the facts of this case. First, Petitioner

was not represented by a qualified lay person; it was pro se ,

being represented by one of its officers. Second, there was no

evidence that Petitioner's representative repeatedly attempted

to establish violations of laws not relevant to the proceeding,

argued with witnesses, or repeatedly made unsworn ore tenus

representations of fact during direct and cross-examination of

witnesses. To the contrary, Petitioner willingly (even

apologetically) conceded issues established as irrelevant or

outside the request for hearing. Third, Petitioner did present

evidence on flooding (albeit clearly inadequate and without

making a causal connection between flooding and the bridges).

42. In addition, as found, there also were other factors

apparently not present in Burke which are relevant to the

determination whether Petitioner participated in this proceeding

for improper purpose. As found, under the totality of these

circumstances, it was not proven that Petitioner's participation

in this proceeding was for an improper purpose-- i.e. , primarily

to harass or to cause unnecessary delay or for frivolous purpose

or to needlessly increase the cost of licensing or securing the

approval of the Olsons' applications.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that DEP enter a final order : denying

Petitioner's challenge to the propriety of the Olsons' use of

the NGP for minor activities for their proposals; authorizing

the Olsons to use the NGP for their proposals (DEP File Nos. 43-

0137548-002 and 43-0158123-002) subject to the design criteria

limitations and other conditions in the applicable general

permit rules; and denying the Motion for Attorney's Fees from

Petitioner under Section 120.595(1).

Jurisdiction is reserved to enter a final ord er on the part

of the Motion for Attorney's Fees seeking sanctions under

Section 120.569(2)(e).

DONE AND ENTERED this 30th day of July, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 2001.

COPIES FURNISHED :

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Dan White, President

Rustic Phase III Property Owners Association

3337 Southwest Bessey Creek Trail

Palm City, Florida 34990

Tim Morell, Esquire

1933 Tom-a-Toe Road

Lantana, Florida 33426

Elizabeth P. Bonan, Esquire

Cornett, Googe, Ross & Earle, P.A.

401 East Osceola Street

Stuart, Florida 32991

Kathy C. Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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.