97-002152 Radford Stedham And Laurie Stedham vs. Harry Christner And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, January 6, 1998.

Summary: Replacement dock exempt from permit when original dock was rendered non-functional by discrete event.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RADFORD AND LAURIE STEDHAM , )

)

Petitioner , )

)

vs. ) Case No. 97-2152

)

HARRY CHRISTNER )

and FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION , )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on October 30, 1997,

in Viera, Florida, by Daniel Manry, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner : Daniel B. Fowler, Esquire

Patricia Loy-Bond, Esquire

Markey and Fowler, P.A.

410 West Merritt Avenue

Merritt Island, Florida 32954-1081

For Respondent , Kenneth C. Crooks, Esquire

Harry Christner: Dean, Mead, Spielvogel, Goldman

and Boyd

7380 Murrell Road, Suite 100

Melbourne, Florida 32940

For Respondent , Thomas I. Mayton, Esquire

Department of Department of Environmental Protection

Environmental 3900 Commonwealth Boulevard

Protection : Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues in this case are whether the replacement of a

dock by Respondent Christner in February 1993, is exempt from the

requirement for a permit pursuant to Section 403.813(2)(d),

Florida Statutes (1995 ) 1/ and Florida Administrative Code

Rules 40C-4.051(11)(i) and 62-312.050(1)(i) 2/ and, if not,

whether: Petitioners waived their right to request an

administrative hearing pursuant to Rules 62-103.155(3)(b);

Petitioner's have legal standing to challenge the agency action

proposing the exemption; and the agency is estopped from

reopening its prior determination.

PRELIMINARY STATEMENT

On December 20, 1995, Respondent, Department of

Environmental Protection (the "Department") forwarded a letter to

Respondent, Harry Christner (" Christner"), setting forth the

Department's determination that Christner's replacement of an

existing dock in February 1993, was exempt from the general

requirement for a permit. On March 31, 1997, Petitioners filed a

Petition For Formal Administrative Hearing. On May 8, 1997, the

Department referred the matter to the Division of Administrative

Hearings to conduct an administrative hearing.

At the hearing, Petitioners presented the testimony of four

witnesses and submitted 16 exhibits for admission in evidence.

Christner presented the testimony of two witnesses and submitted

18 exhibits for admission in evidence. The Department presented

the testimony of two witnesses and submitted one composite

exhibit for admission in evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the record of the hearing. None

of the parties requested a transcript of the hearing. The

parties timely filed their proposed recommended orders (" PROs")

on or before November 12, 1997.

FINDINGS OF FACT

1. The Department is the state agency responsible for

regulating and permitting residential docks. Since February

1969, Christner has resided at 1655 Misty Dawn Lane, Merritt

Island, Florida. The Christner property is adjacent to the

waters of Newfound Harbor in Brevard County, Florida.

2. Petitioners have owned property adjacent to Christner

since 1990 and resided there until September 1997. Petitioners'

property is located at 1665 Misty Dawn Lane.

3. A dock existed behind the Christner property from 1972

until February 1993 (the "original dock"). After constructing

the original dock, Christner sold a parcel of his land to

Petitioners. After the sale, the original dock was located

within 25 feet of the common boundary between the respective

properties owned by Christner and Petitioners.

4. In February 1993, Christner contracted with Mr. John

Calhoun, Unique Seawall and Dock Systems, to replace the original

dock. The replacement dock was completed in February 1993.

5. The replacement dock is in the same location and of the

same configuration and dimensions as the original dock. The

replacement dock was constructed within the footprint of the

original dock. No fill material other than piles was used to

replace the original dock.

6. Prior to October 1991, the original dock was in need of

repair but was still functional. It provided access to boats

moored at the dock. The original dock could still be used for

fishing and mooring small boats.

7. Between October 1991 and December 1992, the original

dock was rendered non-functional. It was rendered non-functional

by a discrete event.

8. The term "discrete event" is not defined by statute or

rule. A discrete event includes a storm, flood, fire, or

accident. Neither the witnesses nor their records recorded a

storm, flood, fire, or accident between October 1991 and December

1992.

9. The term "discrete event" is not limited to a storm,

flood, fire, or accident. It can include wind and high water.

10. Wind and high water could have damaged the original

dock without damaging newer docks in the immediate vicinity that

had the benefit of better construction and were in better repair.

The original dock was nearly 20 years old in October 1991 and in

disrepair.

11. The damage caused by the discrete event left several

large gaps in the original dock. The damage to the original dock

between October 1991 and December 1992 could not have occurred

without a discrete event.

12. Christner constructed the replacement dock in February

1993 without a permit. In September 1995, Petitioners filed a

complaint with the Department. The complaint alleged that the

replacement dock was constructed without a required permit.

13. By letter dated October 4, 1995, the Department advised

Christner that the replacement dock was an unauthorized single

family dock. The Department stated in the letter that the

original dock was non-functional in November 1992 and was

repaired prior to March 1993 without proper permitting.

14. The letter required Christner to apply for a permit.

In October 1995, Christner filed an application for a Noticed

General Permit and paid the application fee.

1 5. After October 4, 1995, the Department determined that

the dock was functional prior to its repair and exempt from

permitting requirements pursuant to Section 403.813(2)(d) and

Rules 40C-4.051(11)(i) and 62-312.050(1). The Department based

its determination on representations by Christner and his dock

builder that the original dock was repaired with planks before

constructing the replacement dock. Christner and his dock

builder represented that the planks spanned the gaps in the

original dock so that the dock could be used to moor small boats.

Christner represented that an individual could walk above the

water line on the planks to the boats.

16. On December 8, 1995, Petitioners received actual notice

of the Department's determination that the replacement dock was

exempt from permitting requirements because the original dock was

functional prior to its replacement. An employee of the

Department who investigated Petitioners' complaint notified

Petitioners and Christner by telephone of the proposed exemption.

17. The Department did not publish written notice of the

proposed exemption and did not provide Petitioners with written

notice of the Department's action. The Department violated Rule

62-103.155(5) by failing to provide Petitioners with written

notice of their right to request an administrative hearing.

18. In December 1995, counsel for Petitioners made several

inquiries of the Department to determine how the decision to

exempt the replacement dock was made and if it could be changed.

Department personnel represented that the case was closed and

nothing could be done to change the decision.

19. In December 1995, counsel for Petitioners contacted the

Department's office of general counsel concerning a point of

entry. A Department employee represented that no review was

possible.

20. In its PRO, the Department now proposes that the

replacement dock was not exempt from the requirement for a

permit. The Department proposes that the original dock was not

functional prior to the construction of the replacement dock and

that a discrete event did not cause the original dock to be non-

functional.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1). The parties were duly noticed for the hearing.

22. Petitioners have standing to challenge the proposed

exemption. The proposed exemption would affect Petitioners'

substantial interests within the meaning of Section

120.52(12)(b).

23. Authorization of the ex emption by the Department

constitutes agency action subject to the provisions of Chapter

120. Friends of the Hatchineha, Inc. vs. State Department of

Environmental Regulation , 580 So. 2d 267, 272 (Fla. 1st DCA

1991) ; Town of Palm Beach vs. Department of Natural Resources ,

577 So. 2d 1383, 1387 (Fla. 4th DCA 1991). Petitioners have

standing based on their allegations that the proposed exemption

would impact their property adjacent to the replacement dock

coupled with the fact that the alleged impact is a type that the

statute and administrative hearings were designed to address.

24. Christner argues that the petition requesting an

administrative hearing is facially deficient. Christner argues

that the petition does not contain a statement of how and when

Petitioners received notice of the proposed agency action and

that the petition should be dismissed.

25. Christner's motion to dismiss is denied. Notice of

agency action means written notice of agency action. Rule 62-

103.155(6)(a). The petition alleges that Petitioners never

received any written notice of the Department's action, and the

parties stipulated at the hearing that the Department never

provided Petitioners with written notice of the Department's

proposed exemption.

26. Rule 62-103.155(3)(b) provides, in relevant part, that

failure to file a petition after receipt of notice of proposed

agency action waives any right to request an administrative

hearing. Christner contends that Petitioners waived their right

to request an administrative hearing by failing to file their

petition within 21 days after they received notice of the

proposed exemption.

27. Petitioners did not waive their right to an

administrative hearing. Since Petitioners never received the

written notice required as a prerequisite to waiver, the waiver

authorized in Rule 62-103.155(3)(b) does not operate against

Petitioners.

28. Christner's argument that actual notice of the

Department's proposed agency action is sufficient to support

waiver is rejected. Henry vs. Department of Administration,

Division of Retirement , 431 So. 2d 677 (Fla. 1st DCA 1983).

Christner failed to show that Petitioners:

. . . received notice sufficient to commence the

running of the time period within which

review must be sought. The requirements for

such notice are objective rather than

subjective in nature, and apply regardless of

actual or presumed notice of agency action.

Henry , 431 So. 2d at 679.

29. The Department must give Petitioners a clear point of

entry before a determination can be made that Petitioners waived

their right to challenge the proposed exemption. Florida League

of Cities, Inc. et al vs. State of Florida, et al , 586 So. 2d 397

(Fla. 1st DCA 1991). The Department never gave Petitioners a

clear point of entry.

30. Christner argues that waiver operates against

Petitioners because counsel for Petitioners should have known of

the time requirements for filing a petition. Christner's

argument is rejected. A different standard does not arise when

an attorney is involved. Wahlquist vs. School Board of Liberty

County , 423 So. 2d 471, 473 (Fla. 1st DCA 1982).

31. Even if Petitioners had failed to timely file a request

for hearing after receiving written notice, the alleged failure

to timely file a request for hearing was the result of being

misled or lulled into inaction by erroneous information provided

by Department employees that there was no remedy. The time

requirements for filing the petition were tolled during the

period in which the Department lulled Petitioners into inaction.

Machules vs. Department of Administration , 523 So. 2d 1132 (Fla.

1988).

32. Christner argues that Petitioners should be estopped

from challenging the proposed exemption. Christner contends that

Petitioners failed to make inquiry of their right to a hearing

within the time prescribed by rule.

33. Petitioners are not estopped from challenging the

proposed exemption. The evidence does not support Christner's

asserted estoppel.

34. The evidence shows that Petitioners complied with the

requirements for reasonable inquiry in Rule 62-103.155(5).

Within 14 days of the proposed exemption, Petitioners' attorney

in fact made reasonable inquiry into the proposed exemption.

Petitioners' attorney did not pursue the matter further because

Department employees provided erroneous information.

35. Christner contends that the Department is estopped from

revisiting the proposed exemption. Christner's claim of estoppel

against the Department is rejected.

36. The requirements for estoppel against th e Department

are not satisfied in this case. Christner failed to show an

inquiry as a result of changing his position in reliance upon

another party's action or inaction. Gottesman vs. Gottesman , 202

So. 2d 775 (Fla. 3d DCA 1967) ; Boynton Beach State Bank vs.

Wythe , 126 So. 2d 283 (Fla. 2d DCA 1961).

37. There is no evidence that Christner changed his

position to his detriment in reliance on any act or omission on

the part of the Department. The only action Christner took was

to build the replacement dock without a permit. Christner did

not take that action, or refrain from that action, in reliance

upon any act or omission by the Department.

38. The Department did fail to give adequate notice to

Petitioners. That failure by the Department extended the time in

which a petition for administrative hearing could be filed.

However, Christner had already constructed the replacement dock.

The failure to give adequate notice to Petitioners did not affect

Christner's decision to build the replacement dock.

39. Petitioners did not initiate and pursue this case for

an improper purpose. Petitioners did not participate in this

proceeding primarily to harass, to cause unnecessary delay, or to

needlessly increase the cost of securing approval of the

exemption, or for some other frivolous purpose. Section

120.595(1)(e)(1). Petitioners presented justiciable issues of

law and fact and a reasonably clear justification for

participating in this proceeding. Mercedes Lighting vs.

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

1990).

40. The subjective intent or motives of Petitioners for

pursuing their statutory rights in this proceeding are factors

which are not properly considered in determining whether

Petitioners participated in this proceeding for an improper

purpose. Courts should not delve into a party's subjective

intent or a good faith-bad faith analysis. Valdez vs. State , 194

So 388, 394 (Fla. 1940) ; Mercedes Lighting , 560 So. 2d at 278.

41. The burden of proof is on Christner. The party seeking

to prove the affirmative of an issue has the burden of proof.

Florida Department of Transportation vs. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981) ; Balino vs. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977). Christner must show by a preponderance of evidence that

he satisfies the requirements for an exemption. J.W.C. Company,

Inc. , 396 So. 2d at 778 ; Balino , 348 So. 2d at 349.

42. Christner satisfied his burden of proof. Christner

showed by a preponderance of the evidence that the replacement

dock satisfies the requirements for an exemption in Section

403.813(2) and Rule 40C-4.051(11)(i )3.

43. Section 403.813(2) provides that no permit is required

for certain projects including:

(d ) The replacement . . . of existing docks,

except that no fill material is to be used

and provided that the replacement . . . is in

the same location and of the same

configuration and dimensions as the dock

being replaced. . . .

The replacement dock satisfies the foregoing statutory

requirements. The replacement dock required no prohibited fill

and is located within the same footprint as that of the original

dock.

44. Rules 62-312.050(1)(i) and 40C-4.051(11)(i) both

require, inter alia , that the existing dock must be functional

before the replacement dock is entitled to an exemption. The

requirement that the dock must be functional does not appear in

the statute authorizing the exemption.

45. Neither party cited any authority to support a

requirement by rule that does not appear in the statute, and the

Department did not explicate the reasons for the requirement

through competent and substantial evidence in the record or

through supporting case law. However, Christner did not

challenge the rule.

46. Assuming arguendo that the functionality requirement

imposed by rule is a valid exercise of delegated legislative

authority, the existing dock was not functional when Christner

constructed the replacement dock. However, Rule 40C-

4.051(11)(i )3. provides in relevant part that the replacement

dock for a non-functional existing dock is entitled to an

exemption if:

. . . the dock or mooring pile has been

rendered nonfunctional by a discrete event

such as a storm, flood, accident, or fire.

47. The term "discrete event" is not defined by rule or

statute. Rule 40C-4.051(11)(i )3. provides several examples of a

discrete event, such as a storm, flood, accident, or fire, but

does not limit a discrete event to those examples.

48. The Department asserts in its PRO that a discrete event

imposes two implied conditions for an exemption. First, the

discrete event must be a storm. Second, the storm must be a

storm of sufficient strength. As the Department argues in its

PRO:

. . . The only other basis, under Rules 40C-

4.051(11)(i) and 62 .-312.050(1)(l) (sic)

. . ., upon which an exemption could be

granted is if . . . Christner could prove

that the Dock was rendered non-functional by

a discrete storm . Here, contradictory

testimony existed on whether any storm of

sufficient strength occurred in late 1992.

In addition, . . . Christner told none of the

relevant parties that a storm had caused the

damage to the Dock and the November 1992

aerial photographs revealed that no other

dock in the vicinity was damaged by the

alleged storm . . . . (Emphasis supplied.)

PRO at paragraph 57, page 16. See also paragraphs 18 and 19,

pages 6-7.

49. The Department does not explain whether the implied

conditions it urges for Rule 40C-4.051(11)(i) are generally

applicable in all cases, applicable only in this case, and under

what circumstances the conditions apply to other cases. If the

conditions imposed by the Department's interpretation of its

existing rule are generally applicable in all cases, the

Department must first promulgate the conditions in accordance

with statutory rulemaking requirements. McDonald vs. Department

of Banking and Finance , 346 So. 2d 569, 581 (Fla. 1st DCA 1977).

50. Even if the two implied conditions asserted by the

Department are not generally applicable, the conditions may have

the effect of amending the express language of its existing rule

by limiting a discrete event to a storm of a prescribed strength.

An amendment of an existing rule is itself a rule that must

comply with statutory rulemaking requirements. Sections

120.52(16) and 120.54(1).

51. Assuming arguendo that the two implied conditions urged

by the Department neither satisfy the test of general

applicability nor amend an existing rule, the Department may

impose its implied conditions in this case and future cases as

incipient agency policy, i.e., "non-rule policy", without

complying with statutory rulemaking requirements. As the court

explained in McDonald :

While the Florida APA thus requires

rulemaking for policy statements of general

applicability , it also recognizes the

inevitability and desirability of refining

incipient agency policy through adjudication

of individual cases. (Emphasis not supplied.)

* * *

For the Section 120.54 rulemaking procedures

are imposed only on policy statements of

general applicability , i.e., those statements

which are intended by their own effect to

create rights, or to require compliance, or

otherwise to have the direct and consistent

effect of law. . . . (Emphasis not supplied.)

52. While the Department need not promulgate incipient

policy in accordance with statutory rulemaking requirements, the

Department must comply with essential due process requirements

when applying incipient policy in a particular case. In

McDonald , the court explained:

. . . Three due process checks to prevent

arbitrary agency action are the requirements

that reasons be stated for all action taken

or omitted, that reasons be supported by 'the

record', and that specific judicial review

procedures allow the courts to remedy defects

of substance. . . .

Failure by the agency to expose and elucidate

its reasons for discretionary action will, on

judicial review, result in the relief

authorized by Section 120.68(13): an order

requiring or setting aside agency action,

remanding the case for further proceedings or

deciding the case, otherwise redressing the

effects of official action wrongfully taken

or withheld, or providing interlocutory

relief.

McDonald , 346 So. 2d at 584.

53. The Department failed to adduce competent and

substantial evidence on the record that exposes and elucidates

the Department's reasons for interpreting Rule 40C-4.051(11)(i )3.

in a manner that imposes two implied conditions for an exemption

that are not expressed in either the rule or in the authorizing

statute. The Department's own employees testified that the term

"discrete event" is not a defined term and that its

interpretation and application is left to agency discretion in

each case.

54. One Department witness testified that wind and high

water can be a discrete event. He testified that wind and high

water could damage the original dock without damaging newer and

better constructed docks in the immediate vicinity. He testified

that it is unlikely the original dock would have suffered such

damage without a discrete event. That type of evidence does not

expose and elucidate the Department's reasons for agency

discretion requiring Christner's original dock to be rendered

non-functional by: a storm; of sufficient strength.

55. The record does not explicate the Department's reasons

for its construction of the term "discrete event" in this case.

The record is replete with contradictory evidence of when the

original dock became non-functional but contains only a modicum

of evidence to explicate any interpretation of a discrete event.

56. Christner and his wife testified that the original dock

was rendered non-functional by a discrete event which they

characterized as a storm. The Department did not define a storm

with competent and substantial evidence entered on the record.

A Department witness testified that a "discrete event" includes

wind and high water. That evidence is not only credible and

persuasive but comprises substantially all of the evidence that

explains and elucidates a "discrete event."

57. Petitioners presented the testimony of several

witnesses and submitted numerous pictures and a video tape

purporting to show that the original dock was non-functional as

early as October 1991 and that planking added by Christner was

inadequate to satisfy the requirement for functionality. That

evidence does not refute credible and persuasive evidence that

the non-functional condition of the original dock was caused by a

discrete event or a series of discrete events, any one of which

may have been sufficient to render the dock non-functional.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a Final Order denying

Petitioner's challenge to the proposed exemption.

DONE AND ENTERED this 6th day of January, 1998, in

Tallahassee, Florida.

___________________________________

DANIEL MANRY

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of January, 1998.

ENDNOTES

1 / All chapter and section references are to Florida Statutes

(1995) unless otherwise stated.

2/ Unless otherwise stated, all references to rules promulgated

in the Florida Administrative Code in effect on the date of this

Recommended Order.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Daniel B. Fowler, Esquire

Patricia Loy-Bond, Esquire

Markey and Fowler, P.A.

410 West Merritt Avenue

Merritt Island, Florida 32954-1081

Kenneth C. Crooks, Esquire

Dean, Mead, Spielvogel, Goldman

and Boyd

7380 Murrell Road, Suite 100

Melbourne, Florida 32940

Thomas I. Mayton, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

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.