08-006172EF Department Of Environmental Protection vs. Charles Dolby Status: Closed DOAH Final Order on Friday, May 22, 2009.

Summary: For dredging and filling in wetlands without a permit, the Respondent is ordered to pay $4,000. in administration penalties, $500 in enforcement costs, and must restore the area that was disturbed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 08-6172EF

)

CHARLES DOLBY, )

)

Respondent. )

)

FINAL ORDER

The final hearing in this case was held on March 27, 2009,

in Tallahassee, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner Department of Environmental Protection:

Jeffery C. Close, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent Charles Dolby:

Paul V. Suppicich, Esquire

15310 Amberly Drive, Suite 250

Tampa, Florida 33647

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent Charles

Dolby violated certain rules of the Department of Environmental

Protection (Department) related to activities in wetlands in the

Department’s Notice of Violation, Orders for Corrective Action,

and Administrative Penalty Assessment (NOV); whether Respondent

is liable for the administrative fines and investigative costs

assessed by the Department; whether mitigation of the

administrative fines is appropriate; and whether Respondent

should be required to take the corrective action described in

the NOV.

PRELIMINARY STATEMENT

On or about October 27, 2008, the Department issued a

three-count NOV against Respondent for un-permitted dredging and

filling in wetlands. Respondent filed a petition for

administrative hearing and the Department referred the matter to

DOAH.

At the hearing, the Department presented the testimony of

Brian Brown. The Department’s Exhibits 1 through 23, 25 through

27, 30, and 31 were admitted into evidence. Respondent

testified on his own behalf. Respondent’s Exhibits 1 through 5

were admitted into evidence.

A court reporter recorded the hearing, but no transcript

was prepared or filed with DOAH. The parties submitted

post-hearing writings which were carefully considered in the

preparation of this Final Order.

FINDINGS OF FACT

1. The Department is a state agency charged with the power

and duty to administer and enforce the provisions of Chapters

373 and 403, Florida Statutes, and the rules promulgated in

Florida Administrative Code Title 62, that regulate activities

in wetlands.

2. Respondent is the owner of the real property (Parcel ID

#N29A012) located at Tract 12, County Road 652A, Bushnell,

Sumter County, Florida (“the property”). Mr. Dolby has owned

the property since June 9, 2005.

3. In the period from February 2006 to June 2006,

Respondent conducted activities on the property which he

referred to as “clearing.” He did not have a permit from the

Department to conduct the activities.

4. Count I of the NOV charges Respondent with violating

Florida Administrative Code Rule 62-343.050(1), for dredging in

wetlands without an environmental resource permit from the

Department.

5. Count II of the NOV charges Respondent with violating

Florida Administrative Code Rule 62-343.050(1) for filling in

wetlands without an environmental resource permit from the

Department.

6. The Department demonstrated by a preponderance of the

evidence that wetlands exist on Respondent’s property and that

.33 acres of the wetlands were dredged and .22 acres of the

wetlands were filled.

7. Respondent did not present competent evidence to rebut

the Department’s evidence of the existence of wetlands on his

property. Instead, Respondent presented evidence about

unusually heavy rainfall in 2005 and about a “plugged” culvert

under the road near his property, presumably to prove that the

wet conditions on his property were caused by unusual flooding

events and were temporary.

8. The conditions that created a particular wetland are

usually not relevant to the determination of whether a permit is

required for dredging and filling activities in the wetland.

Moreover, the more persuasive evidence presented in this case

shows that the wetlands on Respondent’s property are part of a

larger wetland system that has existed for many years. For

example, the hydric soils in the wetlands on Respondent’s

property are the result of long-term natural processes, not an

ephemeral condition.

9. Respondent did not claim or present evidence which

showed that his activities on the property qualified for an

exemption from the requirement to obtain a permit for activities

in wetlands.

10. Respondent testified that he was told by an employee

of Sumter County that he did not need a permit to clear his

property. Respondent did not make clear whether the County

employee said that the County did not require a permit for

clearing, or whether the County employee said the Department did

not require a permit for clearing. It was probably the former.

Furthermore, Respondent did not say that he told the County

employee that he was going to be clearing in wetlands.

11. The evidence presented by Respondent is insufficient

to demonstrate that Respondent’s ignorance of the Department’s

permitting rules was reasonable or that the circumstances

justify a reduction of the penalty.

12. Count III of the NOV charges Respondent with liability

for the Department’s investigative costs. The Department’s

employee, Brian Brown, testified that he spent at least 40 hours

on investigation and enforcement tasks, during which time he was

paid approximately $22.50 per hour. Therefore, the $500 sought

by the Department in Count III of the NOV is less than the

actual costs incurred by the Department.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

case under Sections 120.569, 120.57(1), and 403.121(2), Florida

Statutes.

14. If the Department has reason to believe a violation of

the laws that it administers has occurred, it may institute an

administrative proceeding to establish liability, to recover

damages, and to order the prevention, abatement, or control of

the conditions creating the violation or other appropriate

corrective action. See § 403.121(2)(a) and (b), Fla. Stat.

15. The Department may proceed administratively in cases

where it seeks administrative penalties that do not exceed

$10,000. See § 403.121(2)(b), Fla. Stat.

16. The Department has the burden to prove by a

preponderance of the evidence that Respondent violated the law

as alleged in the NOV. See § 403.121(2)(d), Fla. Stat.

17. In administrative enforcement cases where penalties

are sought, the Administrative Law Judge is to issue a final

order on all matters, including the imposition of administrative

penalties. See § 403.121(2)(d), Fla. Stat.

18. Section 403.121(3), Florida Statutes, provides a range

of penalties that “must be calculated” for certain types of

violations. For the violations addressed in Counts I and II the

NOV, Section 403.121(3)(c), Florida Statutes, requires a penalty

of $2,000.

19. Evidence may be received in mitigation and may reduce

a penalty up to 50 percent for mitigating factors, including

good faith efforts to comply prior to or after discovery of the

violations by the Department. See § 403.121(10), Fla. Stat.

20. Good cause was not shown to reduce the penalties.

21 . In Count III of the NOV, the Department seeks to

recover $500 of investigative costs incurred in this enforcement

action. These costs were not disputed by Respondent.

22. The Department also seeks to require Respondent to

undertake corrective actions to restore the wetland area that he

disturbed. Restoration of the disturbed wetland is appropriate

and should be required.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1. Within 30 days of the effective date of this Order,

Respondent shall pay $4,000 to the Department for the

administrative penalties assessed in Counts I and II of the NOV

and $500 for the Department’s investigative costs assessed under

Count III of the NOV. Payment shall be made by cashier’s check

or money order payable to the “State of Florida Department of

Environmental Protection” and shall include thereon the OGC Case

No. 07-1412 and the notation “Ecosystem Management and

Restoration Trust Fund.” The payment shall be sent to the

Florida Department of Environmental Protection, Attn: David

Brian Brown, 13051 N. Telecom Parkway, Temple Terrace, Florida

33637.

2. Within 30 days of the date of this Final Order,

Respondent shall attend an on-site, pre-construction meeting

with a representative of the Department to review the work

required by this Final Order. Before the conclusion of the

meeting, the Department shall flag the area to be restored.

3. Before any earthmoving, Respondent shall install and

maintain erosion and sedimentation control devices.

4. No later than 45 days from the effective date of this

Order, Respondent shall remove all Water Primrose ( Lugwigia

peruviana ), Carolina Willow ( Salix caroliniana Michx .), Cattail

( Typha spp .), Brazilian Pepper ( Schinus terebinthifolius Raddi )

and other exotic and/or nuisance vegetation from the restoration

area.

5. Within 60 days of the effective date of this Final

Order, Respondent shall re-grade the restoration area to pre-

disturbance elevations.

a) The only material to be used in the re-grading of the

0.33 acre dredged area shall be the 0.22 acres of side-cast

material. If there is an insufficient amount of side-cast

material to achieve the pre-disturbance elevations, Respondent

shall use additional material approved by the Department.

b) To ensure that the re-grading of the restoration area

achieves pre-disturbance elevations, Respondent shall have a

survey prepared to establish several spot elevations 10 feet

into the adjacent, unaltered wetlands surrounding the

restoration area, and several point elevations within the

restoration area.

c) Respondent shall stabilize all side slopes to prevent

erosion, siltation, or turbid runoff into waters of the State.

d) All re-grading or filling of the restoration area shall

be conducted so as not to affect wetlands and surface waters

outside the restoration area.

6. Respondent shall not begin re-planting of the

restoration area until the Department has approved the re-

grading.

7. Respondent shall plant 100 Red Maples ( Acer rubrum ) and

Dahoon Holly ( Ilex cassine L . ) (in any combination) and 215 Saw-

grass ( Cladium jamaicense ) throughout the approximate 0.55-acre

of restored wetlands. The Red Maples and Dahoon Hollys shall be

planted on 20 foot-centers throughout the restoration area and

shall be 3-gallon, well-rooted, nursery-grown stock. The

sawgrass shall be planted on 10 foot-centers throughout the

restoration area and shall be 1-gallon, well-rooted, nursery-

grown stock.

8. Immediately upon completion of the re-planting,

Respondent shall notify the Department so that an inspection of

the work can be made.

9. Prior to the submittal of each monitoring report

required in paragraph 10, below, Respondent shall remove

Brazilian Pepper ( Schinus terebinthifolius ), Water Primrose

( Ludwigia peruviana ), Carolina Willow ( Salix caroliniana Michx .)

and other nuisance species from the restored wetland area. All

exotic vegetation shall be removed from the restoration area

using hand-held equipment in a manner that will minimize impacts

to the existing wetland plants and soils.

10. Respondent shall submit an initial monitoring report

within 30 days of the completion of the re-planting of the

restoration area and shall submit subsequent monitoring reports

for five years following completion of the re-planting: semi-

annually for the first year and annually for years two through

five. The monitoring reports shall include the following

information:

a) Respondent’s name and address, and OGC Case No. 07-

1412;

b) The date of the investigation upon which the report is

based;

c) Color photographs taken from fixed reference points

that will be used for all reports, including photographs of the

canopy of the planted trees;

d) The percentage of planted trees within the restoration

area that have survived;

e) The average height of the planted trees;

f) The percentage of planted herbaceous species within the

restoration area that have survived; and

g) A written summary describing the success of the

restoration area, including any steps needed or taken to promote

future success, such as re-planting or the removal of nuisance

and exotic species, and noting water levels observed within the

restoration area.

11. Respondent’s restoration obligations under this Final

Order shall continue for the five-year monitoring period and

thereafter until the restoration area has achieved (continuously

for 12 months without re-plantings and removal of exotic and

nuisance species) a minimum of 80 percent survival, an average

tree height of at least ten feet; vigorous growth consistent

with the species; total coverage of over 80 percent within the

restoration area by planted and/or naturally-recruiting, native,

“non-nuisance,” wetland species as defined in Chapter 62-340

Florida Administrative Code; and less than 10 percent coverage

by exotic and nuisance species.

12. If the Department notifies Respondent that, based on

visual inspection or review of the monitoring reports, the

restoration area is not meeting the above-specified success

criteria, Respondent shall submit an alternative restoration

plan to the Southwest District Office within 30 days.

13. The Department’s determination that an alternative

restoration plan is needed, or that an alternative restoration

plan submitted by Respondent is inadequate, shall constitute

agency action subject to administrative challenge pursuant to

Chapter 120, Florida Statutes.

14. If the property is sold during the monitoring period,

Respondent shall remain obligated to perform the monitoring.

Before or at the closing of the sale of the property, Respondent

shall inform the purchaser of Respondent’s obligations under

this Final Order and shall deliver a copy of the Final Order to

the purchaser. Respondent shall also notify the Department in

writing of the sale of the property within 15 days of the

closing.

DONE AND ORDERED this 22nd day of May, 2009, in

Tallahassee, Leon County, Florida.

BRAM D. E. CANTER

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 22nd day of May, 2009.

COPIES FURNISHED :

Jeffery C. Close, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Paul V. Suppicich, Esquire

15310 Amberly Drive, Suite 250

Tampa, Florida 33647

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

District, or with the District Court of Appeal in the Appellate

District where the party resides. The notice of appeal must be

filed within 30 days of rendition of the order to be reviewed.