02-000621 Ben Withers And Ben Withers, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, January 9, 2003.

Summary: Department provided by clear and convincing evidence that Petitioners excavated seaward of the coastal construction control line on Dog Island in violation of a permit and Section 161.053(2), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEN WITHERS and BEN WITHERS, INC., )

)

Petitioners, )

)

vs. ) Case No. 02 - 06 21

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant t o notice, a final hearing was held in this case in

Tallahassee, Florida, from October 9 - 10, 2002, before Charles A.

Stampelos, an Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Nicholas Yonclas, Esquir e

Post Office Box 386

Eastpoint, Florida 32328

For Respondent: Robert W. Stills, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

Petitioners challenged the Department of Environmental

Protection's (Department) preliminary Final Order, alleging that

Petitioners committe d the "unauthorized clearing and destruction

of dunes and dune vegetation for the purposes of constructing a

roadway seaward of the coastal construction control line [(CCCL)]

without benefit of a permit." The ultimate issue is whether the

work Petitioners performed was seaward of the CCCL, and if it was,

whether there was a violation of Amended Permit FR - 563 and Section

161.053(2), Florida Statutes.

PRELIMINARY MATTERS

On October 21, 1999, the Department issued a beaches and

coastal systems permit to Le onard Pepper for the construction of a

single - family dwelling seaward of the CCCL on Dog Island, Franklin

County, Florida. Special Condition 1.5 required the submittal of

a construction access plan, showing the route and timing for

bringing equipment and materials to the site, in order to minimize

impacts to the beach and dune system. On October 16, 2000, in

light of design changes to the proposed dwelling site, the

Department issued an Amended Permit FR - 563 to Mr. Pepper with the

same access plan require ment.

On March 15, 2001, Mr. Withers, the principal for Ben

Withers, Inc., who had contracted with Mr. Pepper to construct the

dwelling, submitted to the Department a construction access plan

for the Amended Permit, and shortly thereafter, the Department

accepted and approved the access plan. On April 11, 2001, the

Department issued a Notice to Proceed for the dwelling

construction work to begin.

On or about May 1, 2001, Mr. Withers traversed the Easy

Street Easement on the western part of Dog Island.

O n May 7, 2001, the Department issued a Notice of

Violation/Cease and Desist to Ben Withers and Ben Withers, Inc.,

for alleged unauthorized clearing and destruction of dunes and

native vegetation for the purposes of constructing a roadway

seaward of the CCC L without the benefit of a permit from the

Department, i.e. , the narrows violation.

On May 8, 2001, the Department issued a Notice of Permit

Violation/Cease and Desist to Ben Withers and Ben Withers, Inc.,

for alleged unauthorized grading and excavation at the Pepper home

project site, i.e. , the project site violation.

On November 30, 2001, the Department issued a preliminary

Final Order to Petitioners, assessing an administrative fine of

$500.00 for the project site violation. Thereafter, Petitioners

t imely filed a Petition for Administrative Hearing relative to

this preliminary Final Order, and the Department referred the

matter to the Division of Administrative Hearings (Division) for

the assignment of an administrative law judge and the conduct of a

final hearing. The matter was assigned Case No. 02 - 0117.

On January 11, 2002, the Department entered a separate

preliminary Final Order to Petitioners, assessing an

administrative fine of $7,500.00 and administrative damages of

$5,000.00 for the narrows violation. Thereafter, Petitioners

filed a Petition for Administrative Hearing relative to this

second preliminary Final Order, and the Department referred the

Petition to the Division for the assignment of an administrative

law judge and the conduct of a final hearing. The matter was

assigned Case No. 02 - 0621.

Over objection by the Department, both cases were

consolidated for final hearing. The consolidated cases were set

for final hearing for May 21 - 22, 2002, but continued at the

request of the Depart ment. The final hearing was re - scheduled

for, and was held on, October 9 - 10, 2002.

On October 7, 2002, the Department issued a Rescission of

Final Order pertaining to the project site violation, rendering

moot the Petition filed in Case No. 02 - 117. The Department

subsequently filed an unopposed Motion to Relinquish Jurisdiction

to the Department.

On October 9, 2002, the Department filed a Motion in Limine,

seeking to prohibit the introduction of testimony and exhibits

relating to a previous criminal t respass charge against Mr.

Withers, initiated by The Nature Conservancy; a malicious

prosecution suit prosecuted by Mr. Withers against The Nature

Conservancy; a settlement agreement between Mr. Withers and The

Nature Conservancy relating to the prior item s; The Nature

Conservancy's request(s) to take action against Mr. Withers; and

photographs of Rick Clevenger's work on Dog Island. The Motion

was granted as to the first three items and denied as to the last

two items.

On October 21, 2002, an Order Clos ing File was entered in

Case No. 02 - 0117, and jurisdiction was reserved to consider a

motion for an award of attorney's fees and costs which could be

filed by Petitioners pursuant to Sections 57.111 and 120.595(1),

Florida Statutes. (Petitioners reserved the right to file such

motions at the outset of the final hearing.) Petitioners filed a

motion for an award of attorney's fees and costs (pursuant to

Section 120.595(1), Florida Statutes) in Case No. 02 - 0117.

Petitioners also filed a separate motion for an award of

attorney's fees and costs (pursuant to Section 57.111, Florida

Statutes) in Case No. 02 - 4468F, and the Department filed a

response to both motions. Separate orders have been issued

disposing of these motions in the respective cases.

The Depart ment's Exhibits 1 - 35 were admitted into evidence.

The Department presented the following witnesses: Tony McNeal,

Kenneth Greenwood, Ken Jones, John A. Poppel, Ben Withers, William

Fokes, Phil Sanders, and Jim Martinello.

Petitioners' Exhibits 1 – 9 were ad mitted into evidence. Ben

Withers testified on behalf of Petitioners.

At the conclusion of the hearing, the parties were given 15

days after the filing of the transcript to file their proposed

recommended orders. The four - volume hearing transcript was f iled

with the Division on November 13, 2002. The Department requested

an extension of time to file a proposed recommended order which

was granted. The parties filed proposed recommended orders and

they have been considered in the preparation of this Reco mmended

Order.

FINDINGS OF FACT

Parties

1. Petitioner, Ben Withers, Inc., is a Florida corporation

doing business in the State of Florida.

2. Petitioner, Ben Withers, is the President and owner of

Ben Withers, Inc., and a resident of Panacea, Florida.

(Hencefo rth, Ben Withers and Ben Withers, Inc., are referred to

collectively as "Mr. Withers," unless otherwise noted.)

Mr. Withers is a licensed general contractor.

3. The Department is the executive agency of the State of

Florida operating pursuant to, among other s, Chapter 161, Florida

Statutes, and Chapter 62, Florida Administrative Code. Pursuant

to Chapter 161, Florida Statutes, the Department administers the

CCCL program for construction activities seaward of the CCCL.

Coastal Construction Control Line Progra m

4. The Department's Bureau of Beaches and Wetland Resources

regulates construction and excavation activities seaward of the

CCCL. The Department is responsible for determining and setting

the CCCLs. The CCCL is a scientifically established line pursuant

t o Section 161.053, Florida Statutes. By definition, the CCCL

"defines that portion of the beach - dune system subject to severe

fluctuations based on a one - hundred - year storm surge, storm waves,

or other predictable weather conditions." Rule 62B - 33.002(13) ,

Florida Administrative Code.

5. Construction and excavation activity seaward of the CCCL

is regulated by Section 161.053, Florida Statutes, and Rule 62B -

33, Florida Administrative Code.

6. Mr. Withers admitted that he is aware of Department rules

regarding bea ches and coastal construction and is also aware that

excavation seaward of the CCCL requires a permit unless it is

otherwise exempt, and that he had this knowledge prior to the

present case.

Accessing the Pepper Project Site Under Amended Permit FR - 563

7. Do g Island is a barrier island south of and about three

miles off the coast of Franklin County, Florida. The island is

approximately eight miles in length. There is no bridge to the

island. The Pepper project site is on the far western end of the

island.

8. The Gulf of Mexico borders the island on the south and

St. George Sound borders the island to the north.

9. The most common way to access the Pepper site with any

vehicle carrying equipment and materials, would be to use a boat

or barge to a marina area (Tyso n's Harbor) near the center of the

island, or a private dock, and then traverse west down the middle

of the island or down the beach itself, or a combination of the

two.

10. The Easy Street Easement is an easement area for a

roadway running east and west thr ough Dog Island. The parties

agree that Easy Street and the Easy Street Easement are the same.

11. The Easy Street Easement had been an unpaved roadway

years before; part of the roadway was still visible in May 2001,

and other parts had been covered with vege tation. There are

portions of Easy Street and Easy Way east of the cul - de - sac which

are visible roadways. See , e.g. , Department Exhibit 13.

12. Additionally, parts of Easy Street are seaward of the

Department's CCCL ( e.g. , in the narrows area which is west of the

cul - de - sac) and other parts are landward of the CCCL. See , e.g. ,

Finding of Fact 29.

13. Pursuant to its statutory duty, in 1996, the Department

set the reference monuments R - 158 - R - 160 for the CCCL on the west

end of Dog Island. These monuments are in the narrows area of the

island and run west to east. The CCCL is not visible on the

ground. A surveyor is needed to locate the line. The alleged

violation in this case was committed between R - 158 and R - 160, part

of the narrows area.

14. The Easy Street Eas ement on Dog Island runs both north

and south from The Nature Conservancy cul - de - sac and then runs

westerly to the west end of Dog Island.

The CCCL Permits

15. On October 21, 1999, the Department issued Permit FR - 563

to Leonard Pepper, the property owner, fo r the construction of a

single – family dwelling and for structures associated with the

dwelling on the west end of Dog Island.

16. Permit FR - 563 contained Standard Permit Conditions that

required in part: (1)(a) all construction or activity for which

the permi t was granted be carried out in accordance with the plans

and specifications which were approved by the Department as a part

of the permit; (1)(b) all construction or activity authorized

under the permit shall be conducted using extreme care to prevent

any adverse impacts to the beach and dune system; and (1)(g)

existing beach and dune topography and vegetation shall not be

disturbed except as expressly authorized in the permit.

17. Permit FR - 563 did not authorize the start of

construction until a construction access plan to the Pepper

project site was approved, in order to minimize impacts to the

beach and dune system.

18. On October 16, 2000, Amended Permit FR - 563 was issued

with a Notice to Proceed Withheld. The Amended Permit also

contained Special Condition 1.5 which required the submittal and

approval of "[a] construction access plan showing the route and

timing for bringing equipment and materials to the site, in order

to minimize impacts to the beach and dune system." The Department

was concerned about th e manner in which equipment and materials

would be brought to the project site without causing further harm

to the system.

19. Amended Permit FR - 563 did not expressly or implicitly

authorize excavation or grading seaward of the CCCL in any area on

Dog Island o ff of the project site and footprint of the house.

20. In late 2000, Mr. Withers became involved with the

Pepper project after Amended Permit FR - 563 (with the Notice to

Proceed Withheld) was issued on October 16, 2000. Part of

Mr. Withers' job responsibility was to prepare and submit a

construction access plan to the Department for approval.

21. The Department does not normally require an access plan

because most job sites are located in areas with established roads

for ingress and egress. Here, there was no est ablished road to

and from the project site.

22. The access plan was necessary in order to determine how

Mr. Withers would transport equipment and materials to the Pepper

project site on the west end of Dog Island due to the site's

remote location and the absen ce of an established roadway to the

site.

23. Mr. Withers expected that materials and heavy equipment,

including cranes, would be off - loaded at Tyson's Harbor, located

approximately in the middle of Dog Island, and transported by

vehicle to the project site a long the access plan route. He

expected to only transport pilings using the beach access route.

24. On March 15, 2001, Mr. Withers submitted an access plan

which described the route Mr. Withers would traverse by vehicle

with construction equipment and materia ls. See Endnote 1.

25. The Easy Street Easement starts at the east end of the

island as an established roadway. Proceeding in a westerly

direction, Easy Street comes to a dead - end at a cul - de - sac

landward of the CCCL.

26. The access plan authorized Mr. Withers to access the job

site using part the Easy Street/Easy Street Easement (starting on

the east end of the island) going north from The Nature

Conservancy cul - de - sac, then heading in a westerly direction just

south of the Ausley house (west of R - 158 and just landward of the

CCCL) and across the narrows area and continuing in a westerly

direction along the northern shoreline and in southerly direction

toward R - 154.

27. The access plan then authorized Mr. Withers to proceed

in a westerly direction over the middle portion of the west - end of

the island, then in a southerly direction toward the project

site. 1 The access plan showed a route both landward and seaward

of the CCCL along the narrows area. See Department Exhibit 4 -

orange line then blue line after the ora nge circle on the west - end

of the island.

28. As described by Mr. McNeal of the Department, the access

route is seaward, for the most part, of the CCCL from R - 157 to R -

159 (running west to east) and landward of the CCCL east of R - 159.

The Department describ ed the damaged area of 5,305.6 square feet

(Department Exhibit 11A, insert "B") caused by Mr. Withers as east

of R - 159 and seaward of the CCCL and south of the access plan

route. See also Finding of Fact 35.

29. However, it appears that a portion of Easy Stre et,

between R - 159 and R - 160, is seaward of the CCCL. Compare

Department Exhibit 12 with Department Exhibits 4, 11A, and 13.

During a pre - hearing deposition, Mr. Withers marked in pink the

route he took through a portion of the narrows area which

coincide s with the portion of Easy Street between the approximate

locations of R - 159 and R - 160, depicted on Department Exhibit 12.

See Finding of Fact 43. (Mr. Withers had the Easy Street Easement

staked prior to doing any work on Dog Island. See Findings of

Fa ct 33 - 35.) The damaged area appears to coincide with this

portion of Easy Street, and seaward of the CCCL. See Department

Exhibit 11A.

30. The access plan authorized Mr. Withers to drive

(vehicular traffic) his equipment over the easement following the

rou te depicted on the access plan until he arrived at the project

site. See Endnote 1. The Department expected that travel along

the access route would cause minimal and temporary damage or

destruction to the topography, so the plan was considered

acceptabl e. The access plan did not authorize excavation of a

roadway within the route, including the narrows area, nor did it

contemplate any other activity over or around a dune other than

what might occur as a result of driving. 2 The Department

understood that Mr. Withers would be driving daily over the access

plan route to the project site. The Department assumed that

trucks would be used to transport equipment and materials. The

Department did not differentiate among vehicles which could be

used, including large trucks.

31. On April 11, 2001, the Department issued a Notice to

Proceed to Mr. Pepper to begin construction of his single - family

dwelling in accordance with Amended Permit FR - 563. The access

plan is part of the Amended permit.

32. Shortly after the Notic e to Proceed was issued, The

Nature Conservancy advised the Department of concerns it had with

the access plan. As a result, on April 24, 2001, there was a

meeting in Apalachicola, Florida, convened by the Department and

attended by other interested gover nmental entities and private

persons, including Mr. Withers. The purpose of the meeting was

explore other possible ways and means of access by Mr. Withers to

the Pepper project site. 3 No resolution was reached during the

meeting and the access plan previ ously approved by the Department

remained effective. The previously issued Notice to Proceed was

also in effect.

The Violations

33. Mr. Withers hired Kenneth Greenwood of Garlick

Environmental Associates to perform a threatened/endangered

species inspection , plant and animal, on an approximately 30 - foot

wide strip on the Easy Street Easement (approximately 1,800 feet)

being utilized in Mr. Withers' access plan and within the narrows

area. See Department Exhibit 13 - yellow markings.

34. On May 2, 2001, Mr. Greenw ood performed the inspection

within the easement that Mr. Withers had staked out by a land

surveyor, approximately 15 feet on either side of the stakes. He

found no threatened/endangered species. (The CCCL was not staked

by Mr. Withers because, according to Mr. Withers, the Department

did not ask him to locate the CCCL with stakes.)

35. The access route depicted by Mr. McNeal in orange on

Department Exhibit 4, which runs east of R - 159, is similar to the

description of the staked areas east of R - 159, described by Mr.

Greenwood and marked in yellow on Department Exhibit 13. See

Findings of Fact 28 - 29. Both areas are landward of the CCCL.

However, the 5,305.6 square foot damaged area is east of R - 159 and

is seaward of the CCCL.

36. Mr. Greenwood described the area where he performed his

investigation as being "relatively undisturbed," "relatively

stable," having no vehicle tracks, and he stated that there were

areas of bare sand as well as areas of "natural beach dune

vegetation." He described the area as "relativ ely flat with some

small amounts of mounding."

37. The pictures taken by Mr. Greenwood within the staked

easement on May 2, 2001, as part of his investigation, do not

depict any vehicle tracks.

38. After Mr. Greenwood completed his investigation on

May 2, 2001, he observed Mr. Withers landward of the CCCL on a

front - end loader and north of the cul - de - sac, proceeding west

along the Easy Street Easement scraping off the top layer of soil

and heading in a westward direction. Mr. Greenwood believed that

the activity performed by Mr. Withers at this time was consistent

with unpaved, road construction. According to Mr. Greenwood, the

width of the scraped area appeared to be approximately the width

of the bucket on Mr. Withers' front - end loader.

39. Mr. Withers stated that he was doing minor grading

landward of the CCCL with a John Deere 310 - E front - end loader

tractor when Mr. Greenwood was present on May 2, 2001. This

tractor had a front bucket (approximately seven to eight feet

wide) and a backhoe for excavating dirt on the back - end.

40. Mr. Withers described the work which he performed when

Mr. Greenwood was present as moving out and smoothing off the top

of the sand landward of the CCCL in order for his equipment to get

through. Mr. Withers also stated that he made areas in the

easement seaward of the CCCL smooth by using the bottom of the

bucket of his front - end loader to move sand around.

41. Mr. Withers mentioned that he was very concerned that he

needed to have the pathway he was utilizing in the access plan

marked and smoothed off and fairly level. He believed the access

plan authorized him to smooth off the areas on the access route.

42. Mr. Withers stated that he had to have the access path

level because he was bringing a self - propelled, 25 - ton crane down

the access pat h and they are top heavy and can get off balance,

topple over, or get stuck.

43. Mr. Withers described two types of work that he

performed in the Easy Street Easement as: 1) clearing landward of

the CCCL that required scooping and moving dirt, and 2) smoothi ng

several areas seaward of the CCCL, just east of R - 158 to around R -

160.

44. An area of excavation damage seven feet seaward of the

CCCL (beginning approximately 130 feet east of R - 158) and an area

41 feet seaward of the CCCL (beginning at R - 159, continuing east

approximately 500 feet) are located within the area Mr. Withers

stated he did some "smoothing off areas," again, east of R - 158 and

continuing east toward, but west, of R - 160.

45. Mr. Withers believed that Amended Permit FR - 563 allowed

him to use the Eas y Street Easement in the access plan "to do

. . . whatever was necessary and . . . needed to get [his]

equipment, access [his] equipment down to the job site." He also

admitted smoothing the areas.

46. Mr. Withers also stated that Amended Permit FR - 563

grante d him permission to access the west end of Dog Island.

Therefore, there was no need for him to locate the CCCL. Mr.

Withers referred to the easement in the access plan as turning

into a good pathway after he smoothed the areas.

47. Mr. Withers stated that it was his "intention to gain

access to the west end of Dog Island through a legal easement and

an existing roadway" and that he wanted to utilize it.

48. Mr. Withers testified "that he knew a lot of roads on

Dog Island crossed seaward of the [CCCL]" in respon se to

questioning whether he knew at the time of his performing work on

the easement, whether or not the Easy Street Easement crossed

seaward of the CCCL. He knew he was going to be traversing

"fairly close" to the CCCL. Mr. Withers stated he did not

kno wingly violate the conditions of the Amended Permit.

49. Mr. Withers was aware of the Department's permit

requirements for work seaward of the CCCL when he performed his

access work in the easement on Dog Island. However, Mr. Withers

never had a survey done to figure out where the CCCL was located.

Notice of the Alleged Violations

50. Around May 2, 2001, the Department received a complaint

that excavation was occurring seaward of the CCCL on Dog Island in

the narrows area of the Easy Street Easement.

51. On May 4, 2 001, John A. Poppel, William Fokes, and Phil

Sanders went to Dog Island on behalf of the Department to

investigate the complaint of excavation in the narrows area

seaward of the CCCL.

52. On May 4, 2001, Mr. Poppel performed a survey of the

narrows area and l ocated the CCCL. He located monuments R - 158 -

R - 160. Department Exhibit 11. As a product of his survey, Mr.

Poppel was able to depict the newly excavated roadway or pathway

in relation to the CCCL. Mr. Poppel calculated that one area of

damage was seve n feet seaward of the CCCL and consisted of 503.8

square feet of damage and a second area of damage was 41 feet

seaward of the CCCL and consisted of 5,305.6 square feet of

damage. These square foot areas represent only the disturbed

areas seaward of the C CCL, not the entire area between the CCCL

and the Gulf of Mexico. Both areas of damage are within the area

where Mr. Withers stated that he smoothed out the sand.

53. As part of the May 4, 2001, investigation, William

Fokes, an Engineer I with the Departmen t, took photographs of the

damaged areas and prepared an inspection report. Mr. Fokes'

report indicates that an approximately 11 - foot wide roadway or

pathway had been cleared by excavation with the most seaward

extent of the road being about 40 feet seawa rd of the CCCL. In

addition, the report states that small dunes and beach vegetation

had been destroyed.

54. Mr. Fokes described the damage as excavation or grading

done by some kind of machine, which cut and uprooted vegetation

and pushed sand to the side as it leveled the ground. Mr. Fokes

testified that the damage did not appear to be caused by merely

traversing the area.

55. Mr. Sanders, an engineer with the Department, processes

CCCL permit applications and supervises Mr. Fokes, a field

engineer. On May 4 , 2001, Mr. Sanders observed the narrows area

in question and confirmed that it looked like a "graded road" in

that "[i]t appeared in the road bed that vegetation was gone and

had been pushed out to the side, graded away," and that there was

"excavation" s eaward of the CCCL. Mr. Sanders stated that this

activity did not comply with the approved access plan.

56. On May 7, 2001, a Notice of Violation was issued to Mr.

Withers for the "the unauthorized clearing and destruction of

dunes and native vegetation f or the purpose of constructing a

roadway seaward of the coastal construction control line."

57. Mr. Greenwood's photographs taken May 2, 2001, when

compared with Mr. Fokes' photographs taken May 4, 2001, show that

no discernable roadway or pathway was pres ent landward or seaward

of the CCCL in the narrows area at the time of Mr. Greenwood's

inspection on May 2, 2001. This is evident when comparing Mr.

Greenwood's photograph, Exhibit 15a, taken on May 2, 2001, with

Department Exhibit 16g taken on May 4, 200 1 -- the roadway or

pathway present in the May 4, 2001, photo is absent in the May 2,

2001, photograph, and the vegetation has been removed from part of

the area.

58. Comparing Mr. Greenwood's photograph, Department Exhibit

15b, taken May 2, 2001, with Depart ment Exhibits 16c and d, taken

on May 4, 2001, also shows that the roadway or pathway was not

present on the narrows portion of the Easy Street Easement at the

time of Mr. Greenwood's inspection. The previously mentioned

pictures, which were used for a co mparison, were taken by two

different people on separate dates, and from approximately the

same locations. Also, Department Exhibit 16j was taken 250 feet

east of R - 159 and within the narrows area, facing east which shows

clearing approximately 40 feet se award of the CCCL.

59. On May 14, 2001, at the request of the Department, Ken

Jones, a principal engineer with Post Buckey et al. , performed a

damage assessment of the narrows portion of the Easy Street

Easement which was seaward of the CCCL. Mr. Jones has a

bachelor's degree in civil engineering and a master's degree in

physical oceanography. Mr. Jones was familiar with the narrows

area having been to Dog Island for recreation during the past 20

years and as a Dog Island property owner for the last three yea rs.

Mr. Jones described the narrows area as relatively flat and

located between the St. George Sound to the north and the Gulf of

Mexico beaches to the south. Between these two areas, the land is

undulating sand and fairly consistent vegetation.

60. At the time of Mr. Jones' damage assessment, he

determined that a road had been cut through the vegetative portion

of the dune of the narrows. Mr. Jones observed cut roots and a

majority of the vegetation destroyed. Mr. Jones stated it

appeared that the damage was caused by a vehicle with a blade on

the front. The result was the road sat down in the sand

approximately four to six inches. Mr. Jones stated that the work

appeared to have been recent because distinct edges were still

present.

61. Mr. Jones took pho tographs and compiled an inspection

report as part of his damage assessment. Mr. Jones testified that

the damage "was pretty consistent from both landward and seaward

of the [CCCL]." The pictures labeled Department Exhibits 18a1 and

18a2 depict a level p athway or roadway barren of vegetation

seaward of the CCCL. Department Exhibit 18a4 is a photograph of a

typical vegetated dune. Mr. Jones took this picture in order to

have a general idea of what the vegetation coverage was in order

to get an idea from a cost - estimating perspective.

62. Mr. Jones's cost estimate for repairing the damage to

the narrows area seaward of the CCCL, was approximately

$7,500.00. 4 Mr. Jones calculated the $7,500.00 by making an

estimate of what it would cost to buy coastal vegetat ion, and by

estimating what it would cost to employ laborers to hand rake the

sand back into position and to plant the vegetation.

Administrative Fine and Damages

63. Jim Martinello, an environmental manager in charge of

enforcement and compliance with the Bu reau, used Mr. Jones' damage

assessment estimate for informational purposes in assessing the

damages amount for the narrows area. Mr. Martinello calculated

the administrative fine and damages in accordance with Section

161.054, Florida Statues, and Rules 62B - 54.002 and 62B - 54.003,

Florida Administrative Code.

64. Rule 62B - 54.002, Florida Administrative Code, provides

that the Department shall assess fines for willful violations of,

or refusing to comply with, for example, Section 161.053, Florida

Statutes, an d the fine should be sufficient to ensure immediate

and continued compliance. In determining the actual fine within

the range, the Department shall consider the offender's past

violations, if any, and other aggravating or mitigating

circumstances. Aggrav ating circumstances include prior knowledge

of rules.

65. Mitigating circumstances may be considered. Id.

66. Mr. Withers had knowledge prior to the issuance of

Amended Permit FR - 563 of Department rules regarding permit

requirements for construction activities s eaward of the CCCL.

67. On October 4, 1996, Mr. Withers, on behalf of Ben

Withers Construction Company, was issued a warning letter for

possible unauthorized construction seaward of the CCCL. This

matter was resolved by entering into a consent order.

68. On Oc tober 29, 1997, Mr. Withers, on behalf of Ben

Withers Construction Company, was issued a warning letter for

possible permit violation seaward of the CCCL.

69. On November 13, 1997, Mr. Withers was issued a warning

letter for possible unauthorized construction seaward of the CCCL.

70. On October 27, 2000, Mr. Withers wrote a letter to Mr.

McNeal indicating that he believed that the Easy Street Easement

on Dog Island heading south from The Nature Conservancy cul - de -

sac, then west to the west end of Dog Island, is landward of the

CCCL and, therefore, no permit was necessary to reopen and use the

easement, but he would have a surveyor establish the control line

prior to work commencing. On November 7, 2000, Phil Sanders

replied by letter to Mr. Withers' October 27, 2000 letter, in

which Mr. Sanders reminded Mr. Withers of the pertinent rules and

laws and suggested that Mr. Withers have the CCCL surveyed.

71. On December 20, 2000, Mr. Martinello sent Mr. Withers an

advisory letter informing him that the area he traverse d (on July

2000) on the south route of the Easy Street Easement from the cul -

de - sac on Dog Island was considered to be a dune as defined by

Rule 62B - 33.002, Florida Administrative Code. However, Mr.

Martinello further advised that the Department did not t ake any

action because "the traversing [did not] cause any substantial

damage, it was minimal damage."

72. In regard to the present case, it is more than a fair

inference that Mr. Withers had specific knowledge of the CCCL and

the Department's laws and rule s, and that he knew excavation was

not authorized seaward of the CCCL. The information in the prior

Findings of Fact was used by the Department, and specifically Mr.

Martinello, to determine that the harm to the beach resource or

potential harm was major, and the administrative fine assessed was

$7,500.00. However, part of Mr. Martinello's determination was

predicated on Mr. Jones' assessment that the site one narrows

violation was approximately 700 feet in length when, in fact, the

area was approximately 500 feet in length, which explains in part

the disparity between a 9,800 square foot area and the proven

5,305.6 square foot area. See Finding of Fact 78 and Endnote 4.

Even the additional amount of damage of 503.8 square feet for the

site two narrows a rea, when viewed in the aggregate, is

significantly less than Mr. Jones' assessment of damages by square

feet. (Mr. Martinello used the Jones' assessment as a guideline.

Mr. Martinello says that the mistake did not alter his decision,

although he was una ware of the mistake until the final hearing.

He also says that Mr. Jones recommended a higher damage amount

than the $5,000.00 assessed by the Department in its preliminary

Final Order. He did -- $7,500.00 for 9,800 square feet of damage.)

73. Grossly negligen t or knowing violations of statutes and

Department rules regarding coastal construction seaward of the

CCCL, which result "in harm to sovereignty lands seaward of mean

high water or to beaches, shores, or coastal or beach - dune

system(s), including animal, plant or aquatic life thereon," shall

be considered in determining damages. Rule 62B - 54.003(1), Florida

Administrative Code. Rule 62B - 54.003(2), Florida Administrative

Code, provides that a damage amount greater than the minimum

amounts may be assessed t o ensure, immediate and continued

compliance and the Department may consider, e.g. , the need for

restoration and the damaged ecological resource. The Department

determined that the violation was knowing based on the factors

mentioned above. The Departmen t also considered the need for

restoration and the damage to ecological resources and whether the

amount would ensure immediate and continued compliance. Id.

74. The Department determined that there was harm to the

resource and that it was major and knowing. The Department

proposed to assess the minimum damage amount of $5,000.00.

75. On January 11, 2002, the Department entered a

preliminary Final Order for the unauthorized grading and

destruction of dunes and dune vegetation seaward of the control

line for the purpose of constructing a roadway. The amount

assessed in the Final Order was $12,500.00, $7,500.00 in

administrative fines and $5,000.00 in damages, as described above.

76. As noted, there has been harm to the beach area resource

seaward of the CCCL and the Department proved the need for

restoration and the damage to the ecological resource.

77. In mitigation, Mr. Withers' construction access plan was

approved by the Department. The Department knew that Mr. Withers

intended to use the access route, which ran s eaward of the CCCL

from approximately R - 157 to R - 159 (except for a small portion

between R - 158 and R - 159) in the narrows area; that Mr. Withers

planned to transport equipment and materials by truck using the

access route and necessarily would traverse seaw ard of the CCCL;

and that he would continuously use the access route until the

project was completed. The actual damaged area is less than

originally determined by Mr. Jones, thus the need for restoration

reduced.

78. Mr. Jones, without the benefit of a surve y, estimated

the total cost to restore the damaged area of 9,800 square feet to

be approximately $7,500.00. The total square feet of damage

proven in this proceeding is 5,809.4 square feet in the narrows

area and the Department is requesting $12,500.00 in fines and

damages. Based on an approximate ratio of square feet and dollars

needed to restore, a damage assessment in the amount of $4,500.00

is appropriate. Balancing the aggravating and mitigating

circumstances, a fine of $3,500.00 is appropriate.

CON CLUSIONS OF LAW

79. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to this proceeding

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

80. As the complaining party in this penal proceeding, the

Dep artment has the burden to prove its allegations, set forth in

its Final Order regarding the narrows violation, by clear and

convincing evidence. Department of Banking and Finance v.

Osborne, Stern & Co. , 670 So. 2d 932 (Fla. 1996); Section

120.57(1)(j), F lorida Statutes. See also Balino v. Department of

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

1977)(the party asserting the affirmative of a factual issue

generally has the burden of proof). Conversely, Mr. Withers has

the burden to prove that any work he performed in the narrows area

was exempt from the requirements of Section 161.053, Florida

Statutes. See Balino , supra ; see also Harbor Course Club, Inc. v.

Department of Community Affairs , 510 So. 2d 915, 918 (Fla. 3d DCA

1987); Wa lker v. Department of Transportation , 352 So. 2d 126, 127

(Fla. 1st DCA 1977).

81. The construction and excavation activity seaward of the

CCCL is regulated by Section 161.053, Florida Statutes, and Rule

62B - 33, Florida Administrative Code.

82. "The Legislature fi nds and declares that the beaches in

this state and the coastal barrier dunes adjacent to such beaches,

by their nature, are subject to frequent and severe

fluctuations . . . and that it is in the public interest to

preserve and protect them from imprudent construction which can

jeopardize the stability of the beach - dune system, accelerate

erosion. . . ." Section 161.053(1)(a), Florida Statutes. CCCL's

are "established so as to define that portion of the beach - dune

system which is subject to severe fluctu ations based on a 100 - year

storm surge, storm waves, or other predictable weather

conditions. . . ." Id. See also Rule 62B - 33.005(1), Florida

Administrative Code.

83. Section 161.053(2)(a), Florida Statutes, provides that

once the CCCL has been established t hat no person or corporation

shall make any excavation, remove any beach material, or otherwise

alter existing ground elevations, drive any vehicle on, over, or

across any sand dune, or damage or cause to be damaged such sand

dune or the vegetation growing on thereon seaward thereof, except

as provided in Section 161.053.

84. Section 161.053(5), Florida Statutes, provides: "Except

in those areas where local zoning and building codes have been

established pursuant to subsection (4), a permit to alter,

excavate, or construct on property seaward of established coastal

construction control lines may be granted by the

department. . . ."

85. Section 161.053(12)(c), Florida Statutes, provides that

the Department may establish exemptions from the requirements of

Section 16 1.053 "for minor activities determined by the department

not to have adverse impacts on the coastal system." Examples of

such activities include, but are not limited to, eight activities.

A catch - all phrase is also provided which states: "[a]ny other

min or construction with impacts similar to the above activities."

Section 161.053(12)(c)9., Florida Statutes. (Emphasis added.)

("'Construction' is any work or activity, including those

activities specified in section 161.053(2), Florida Statutes,

which may have an impact as defined in this Rule." Rule 62B -

33.002(13), Florida Administrative Code.)

86. Rule 62B - 33.004(3)(c), Florida Administrative Code,

provides that "[m]inor activities which do not cause an adverse

impact on the coastal system and do not cause a disturbance to any

significant or primary dune are exempt from the permitting

requirements of this chapter. Such activities shall be conducted

so as not to disturb marked marine turtle nests or known nest

locations or damage existing native salt - toleran t vegetation."

Eleven activities are described.

87. Importantly, none of the examples of "activities" in

Subsection 161.053(12)(c)1. - 9. or in Rule 62B - 33.004(3)(c)1. - 11.,

authorize those activities proscribed in Section 161.053(2),

recited above, which are do ne seaward of the CCCL. For example,

Subsection 161.053(12)(c)6., Florida Statutes, provides an

exemption for "[t]he removal of any existing structure or debris

from the upland, provided there is no excavation or disturbance to

the existing topography or beach/dune vegetation ." (Emphasis

added.) Rule 62B - 33.004(3)(c)10. provides an exemption for

"[l]andscaping located a minimum of 30 feet landward of the

frontal due, escarpment, or coastal armoring structure which does

not involve excavation of existing grade or destruction or removal

of native salt resistant vegetation ." (Emphasis added.) There is

also an exemption for "[m]ono - post structures including umbrellas,

. . . provided there is minimal disturbance to the beach and dune

system, no damage to veg etation, and the grade is restored. " Rule

62B - 33.004(3)(c)4., Florida Administrative Code. (Emphasis

added.)

88. Rule 62B - 33.002(21), Florida Administrative Code,

defines "excavation" as "any mechanical or manual removal or

alteration of consolidated or unco nsolidated soil or rock material

from or within the beach and dune system."

89. Rule 62B - 33.002(7), Florida Administrative Code, defines

the "Beach and Dune System" as "that portion of the coastal system

where there has been or there is expected to be, over ti me and as

a matter of natural occurrence, cyclical and dynamic emergence,

destruction and reemergence of beaches and dunes."

90. Rule 62B - 33.002(13), Florida Administrative Code,

defines the "Coastal System" as "the beach and adjacent upland

dune system and v egetation seaward of the coastal construction

control line. . . ."

91. Pursuant to Rule 62B - 33.002(17), Florida Administrative

Code, a "'Dune' is a mound, bluff or ridge of loose sediment,

usually sand - sized sediment, lying upland of the beach and

deposited by any natural or artificial mechanism, which may be

bare or covered with vegetation and is subject to fluctuations in

configuration and location."

92. The Department clearly and convincingly proved that Mr.

Withers excavated and caused damage to the dunes and n ative

vegetation seaward of the CCCL in the narrows area. 5 Conversely,

Mr. Withers did not prove that this activity was exempt from the

permitting requirements of Section 161.053, Florida Statutes.

93. Mr. Withers possessed a permit to drive construction

equ ipment and materials over sand dunes and dune vegetation within

the access plan route. Incidental damage from traversing was

expected by the Department. However, Mr. Withers did not have a

permit or permission from the Department to improve the access

ro ute seaward of the CCCL, whether it be by excavation or altering

existing ground elevations, or by smoothing the route seaward

of CCCL. See , e.g. , Department of Natural Resources v. Robert H.

Hatfield , Case NO. 85 - 2777, 1986 WL 402269 (DOAH Recommended Or der

June 20, 1986)(scraping of sand and removal of sand below CCCL).

94. The statutes and rules required Petitioners to acquire a

permit. The Department clearly and convincingly proved that Mr.

Withers smoothed out and leveled areas seaward of the CCCL by

mec hanically moving unconsolidated soil with a front - end loader.

This is a violation of Section 161.053(2)(a), Florida Statutes,

because Mr. Withers did not possess a permit to perform this

activity.

95. The exemptions under Section 161.053(12), Florida

Statute s, and Rule 62B - 33.004(3)(c), Florida Administrative Code,

do not apply here because the activity of excavating the sand

dunes and vegetation seaward of the CCCL is not an authorized

exemption.

96. The Department made a determination that the harm was

"willf ul" and "major" in accordance with Rule 62B - 54.002, Florida

Administrative Code, and assessed an administrative fine in the

amount of $7,500.00.

97. The Department made a determination that the harm to the

resource was both "knowing" and "major" in accordance with Rule

62B - 54.003, Florida Administrative Code, and assessed damages of

$5,000.00.

98. The Department clearly and convincingly proved that

there was a need for restoration of and damage done to an

ecological resource in the narrows area, i.e. , 5,809.4 s quare

feet, and that Mr. Withers knowingly and willfully violated

Section 161.053(2), Florida Statutes, resulting in harm to the

coastal or beach - dune system.

99. Rules 62B - 54.002(1) and 62B - 54.003(1) refer to grades of

harm, but there is no definition of wh at constitutes major,

moderate, or minor harm. But see Rule 62B - 33.002(30)(a) - (c),

Florida Administrative Code, defining several types of impacts.

On this record, given the location and extent of the damage

seaward of the CCCL in the narrows area, the De partment clearly

and convincingly proved the damage and harm done was more than

minor, but less than major. The Department proved the harm to the

resource was moderate. A damage amount of $4,500.00 is

appropriate. See Finding of Fact 78 and Endnote 4. (The minimum

amount is $1,000.00.)

100. In balancing the aggravating and mitigating

circumstances presented in this proceeding, a fine of $3,500.00 is

appropriate. 6 (The range is between $1,000.00 and $5,000.00.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that a final order be rendered as follows:

1. That a final order be issued adopting this Recommended

Order; and

2. Within 30 days of a final order being effective,

Petitioners shall pay a fine of $3,500. 00 and $4,500.00 in damages

with the total amount of $8,000.00, to the Department of

Environmental Protection.

DONE AND ENTERED this 9th day of January, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 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 9th day of January, 2003.

ENDNOTES

1 / Mr. Withers made handwritten notes on the approved acc ess plan

which stated in part: 1) equipment shall access down Easy Street,

and 2) materials shall access Easy Street and beach access which

is located on the owners property.

2 / Mr. McNeal states that "[g]rading is generally the smoothing

out of the gro und surface, whereas excavation generally involves

penetrating ground surface to some depth to move around and so

on."

3 / The Nature Conservancy proposed that the access plan travel

south toward the sandy beach, instead of north of the cul - de - sac,

and p roceed west along the entire sandy beach until there was "a

blow - out in the dune system" and then head north to landward of

the CCCL until the original access plan route was met. At the end

of the meeting the Department issued a field permit to The Nature

Conservancy, as a property owner, for the purpose of obtaining

construction access to construct two houses located landward of

the CCCL.

4 / Mr. Jones' $7,500.00 cost damage assessment was calculated for

9,800 square feet for the entire narrows violati on. The actual

damaged area for site one was 5,305.6 square feet and 503.8 square

feet for site two, with both sites comprising the narrows

violation. Compare Department Exhibit 18 with Department

Exhibit 11A.

5 / Mr. Withers concedes that he traversed within the coastal

system and seaward of the CCCL. He has steadfastly denied

excavating any area seaward of the CCCL in the narrows area.

6 / The provisions of Rules 62B - 54.002 and 62B - 54.003 are not

mutually exclusive. Rule 62B - 54.004(1), Florida Adm inistrative

Code.

COPIES FURNISHED:

Nicholas Yonclas, Esquire

Post Office Box 386

Eastpoint, Florida 32328

Robert W. Stills, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 30 00

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallah assee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

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 submi t 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.