04-003688EF Department Of Environmental Protection vs. Ben A Leasure Status: Closed DOAH Final Order on Friday, February 18, 2005.

Summary: Landowner was found guilty of illegally filling wetlands without a permit. Because of no mitigating circumstances present, a statutory fine was imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3688EF

)

BEN A. LEASURE, )

)

Respondent. )

_______________________________ )

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on January 19,

2005, in Brooksville, Florida.

APPEARANCES

For Petitioner: Alissa Blank, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Ben A. Leasure, pro se

5345 Olivet Dr ive

Dade City, Florida 33525 - 9019

STATEMENT OF THE ISSUE

The issue is whether Respondent, Ben A. Leasure, should

have a $3,000.00 administrative penalty imposed, take

corrective action, and pay investigative costs for allegedly

il legally filling 0.17 acres of wetlands contiguous with the

Withlacoochee River (River), a Class III water, on land

located in unincorporated Hernando County, Florida.

PRELIMINARY STATEMENT

On June 10, 2004, Petitioner, Department of Environmental

Protecti on (Department), filed a Notice of Violation, Orders

for Corrective Action, and Civil Penalty Assessment (Notice)

under Section 403.121(2), Florida Statutes (2004). 1 The

Notice alleged that in April 2003, the Department conducted an

inspection of Responde nt's property in Hernando County,

Florida, and observed that he had filled approximately 0.17

acres of wetlands without a permit in violation of Florida

Administrative Code Rule 62 - 343.050. The Notice further

alleged that this conduct violated Section 403 .161(1)(b),

Florida Statutes, which makes it unlawful to violate a

Department rule. For violating the statute and rule, the

Department seeks to impose administrative penalties in the

amount of $3,000.00, require Respondent to take corrective

action, and r ecover reasonable costs and expenses not less

than $500.00 incurred while investigating this matter.

On August 12, 2004, Respondent filed his Petition for

Administrative Proceeding (Petition) in which he denied the

allegations and requested a hearing to contest the charges.

The matter was referred by the Department to the Division of

Administrative Hearings on October 11, 2004, with a request

that an administrative law judge be assigned to conduct a

hearing. By Notice of Hearing dated October 26, 2004, a final

hearing was scheduled on January 20, 2005, in Brooksville,

Florida. At Respondent's request, the matter was rescheduled

to January 19, 2005, at the same location.

By Order dated November 8, 2004, the undersigned granted

the Department's Request for Entry Upon Land for Inspection.

Pursuant to that Order, an inspection of Respondent's land was

conducted by Department personnel on November 17, 2004.

At the final hearing, the Department presented the

testimony of D. Brian Brown, a Department Environ mental

Specialist III and accepted as an expert; Lee W. Hughes, a

Department Environmental Specialist II and accepted as an

expert; Eric D. Hickman, a Department Environmental Supervisor

and accepted as an expert; William L. Vorstadt, a Department

Environm ental Manager and accepted as an expert; and

Respondent. 2 Also, it offered Petitioner's Exhibits 1 - 11, 13 -

25, and 27, which were received in evidence. Respondent

testified on his own behalf and presented the testimony of

Merwin Sherlin, who is Respondent 's pastor, and Simon E.

Myers, a long - time friend. 3 Also, he offered Respondent's

Exhibits 1 - 7, 8A - C, 9, 10, and 17 - 19, which were received in

evidence. (Except for Exhibit 1, all of Respondent's exhibits

are photographs of the area.) Finally, the under signed

granted the Department's Request for Judicial Notice [Official

Recognition] of Florida Administrative Code Chapters 62 - 302

and 62 - 340 and Rules 62 - 4.050, 62 - 302.700, and 62 - 340.050. 4

There is no transcript of the hearing. Proposed Findings

of Fac t and Conclusions of Law were filed by the parties on

February 2, 2005, and they have been considered by the

undersigned in the preparation of this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determine d:

1. Respondent is the owner of an approximate 5 - acre

parcel of land located at the intersection of Olivet Drive and

State Road 50 (5345 Olivet Drive) in unincorporated Hernando

County, Florida. The property is also known as Parcel

Identification Numb er R09 - 123 - 21 - 1110 - 00J0 - 0010. In broader

geographic terms, the property lies just east of Interstate

75, west of U.S. Highway 301, and just west - southwest of Ridge

Manor, a small community in Hernando County. The western

boundary of the parcel is approxi mately 500 feet east of the

River, a Class III Outstanding Florida Waterbody (OWF), which

meanders through the area. See Fla. Admin. Code R. 62 -

302.700(9)(i)41.

2. In November 1971, Respondent purchased his property

and on a later undisclosed date buil t a residence. According

to Department Exhibit 24, which is a letter authored by

Respondent in 1987, he first began filling the floodplain on

the western part of his land "probably" in 1971, or just after

he purchased the property. Historical aerial phot ographs of

the site indicate that sometime before 1984, he constructed a

pond just north of his house, apparently to be used for

fishing, and by 1992 he had constructed a second, smaller pond

just south of the larger pond.

3. On February 3, 1986, the Unit ed States Army Corps of

Engineers (Corps) sent Respondent a Cease and Desist Order in

the form of a letter in which it advised Respondent that he

had placed a "considerable amount of fill material" in

wetlands adjacent to the River; that such filling was i n

violation of the federal Clean Water Act of 1977; that legal

action would be taken if further filling occurred; that he

must reply within 15 days indicating that he had complied with

the terms of the letter; and that within the same timeframe he

must pro vide information concerning the public and/or private

need for the work, the effects on the surrounding area, and

any other relevant information.

4. By letter dated March 12, 1986, Respondent responded

to the Cease and Desist Order and stated that prior to 1977

the land had been changed from wetlands to usable farmland,

that his land did not connect to the River, and that there

were no natural waters on his property that connected to state

or federal waters.

5. A follow - up letter was sent by the Corps on February

26, 1987, in which the Corps advised Respondent that he could

resolve the violation "by removing all unauthorized fill

material" and restoring the area. He was also told that in

lieu of doing this, he could file an application for an after -

the - fact permit authorizing the filling. A copy of a Joint

Application for Permit was attached to the letter.

6. On March 7, 1987, Respondent replied to the Corps'

letter and stated that his land did not connect with any other

waterbody; that he had been filling his property since 1971

without objection by anyone; that he had a "hard time

understanding all these rules and regulations"; and that he

questioned why the Corps was causing him "so much trouble for

the last couple of years." Respondent never fil ed an

application for an after - the - fact permit nor did he receive a

reply to his letter.

7. After an "Unauthorized Wetland Alteration Field

Investigation" was conducted by the Southwest Florida Water

Management District (District) sometime in 1992, by let ter

dated November 3, 1992, the District advised Respondent that

it appeared the "wetland in question was disturbed prior to

October, 1984" and that any filling done before that date was

exempt from its jurisdiction; that it appeared that other

dredge/fill work had been performed on the same wetland since

that date; that Respondent's claim that the area was being

used for agricultural purposes was not supported by any

evidence; that Respondent's activities constituted a violation

of Chapter 373, Florida Sta tutes; and that all illegal

activity must be ceased immediately. The disposition of

further contacts between the District and Respondent, if any,

are unknown.

8. Against this backdrop, on August 16, 2002, the

Department's Tampa District Office received a complaint from

the District stating that Respondent had illegally filled

wetlands on his property. (The record does not show why the

District waited almost ten years to refer the complaint to the

Department.) In response to that complaint, and as a

pr ecursor to issuing a formal notice of violation, on August

20, 2002, the Tampa district office sent Respondent a warning

letter indicating that a violation "may exist on [his]

property" and requesting that he contact the Department to

arrange a meeting "to discuss this matter."

9. By mutual agreement, an inspection of the property

was scheduled for September 5, 2002. Because a Department

representative became unavailable just before the inspection,

the Department did not appear at the property on the sc heduled

date or notify Respondent that the inspection had been

cancelled.

10. The following day, September 6, 2002, Department

personnel were in the area and appeared unannounced at

Respondent's property. However, no one was home and they did

not inspe ct the property.

11. Several weeks later, Department personnel again

visited the site but could not gain access.

12. Because Respondent was unwilling to grant access to

his property, on April 17, 2003, the Department obtained an

inspection warrant from the Circuit Court in Hernando County

authorizing an inspection of Respondent's property. On April

22, 2003, seven Department employees inspected the property.

13. Based upon plant species and hydrological indicators

found on the property, it was estab lished that the

northwestern corner of Respondent's property lay within the

surface water floodplain of the River and constituted

wetlands, as defined by Section 373.019(22), Florida Statutes,

and Florida Administrative Code Rule 62 - 340.200(19). (The

Depa rtment also established that there is a fifty percent

chance of the filled area being flooded during any given

year.) Therefore, any filling on that portion of Respondent's

property would require a permit. Department records reflected

that Respondent had never obtained a permit authorizing any

work.

14. During their inspection, Department representatives

observed that a narrow strip of land totaling around 0.20

acres in the northwest corner of the parcel (just west of the

larger fish pond) had been fille d with concrete debris and

sand to a height of around 6 or 7 feet in an effort to sever

the connection between the River and the wetlands. 5 Unless

the berm is removed, the activity could lead to adverse

cumulative impacts, including a loss in available ha bitat for

floral and fauna that currently use the area, a loss in water

storage capacity of the current system, and a loss in detritus

formation and nutrient/pollution cycling. An Enforcement

Inspection Report prepared after the inspection recommended

tha t an enforcement action be initiated.

15. On June 10, 2004, the Department issued its Notice

alleging that Respondent had violated Florida Administrative

Code Rule 62 - 343.050, which requires a permit to fill wetlands

or surface waters, and Section 403.161 (1)(b), Florida

Statutes, which makes it unlawful to violate a Department

rule.

16. On August 12, 2004, Respondent filed his Petition

challenging the Notice. In his Petition, Respondent denied

that he owned the property on which the filling occurred;

a lleged that the property had been previously inspected in

1986 by the Corps; alleged that the District confirmed by

letter in 1992 that the filling had occurred prior to 1984 and

was therefore exempt from regulation; and alleged that he is

entitled to "res titution" for damages caused by the Wysong Dam

being rebuilt downstream from his property. At hearing,

Respondent also suggested that the filled area was not

wetlands. This proceeding followed.

17. On November 17, 2004, the Department conducted a

second inspection of Respondent's property. The objectives of

that inspection were to determine the boundary of the filled

area by Global Position Satellite equipment and to allow Eric

D. Hickman, the new Environmental Manager who was not present

during the fir st inspection, to perform a review of the

property.

18. Through ground reconnaissance and photo -

interpretation, Mr. Hickman was able to establish the landward

extent of the wetlands and other surface waters of the State.

Based on vegetation, soils, and h ydrologic indicators found on

the site, he was able to confirm that the filled area on

Respondent's property is wetlands. In fact, because of the

overwhelming evidence of wetland indicators on the property

(that is, the site conditions met nearly every si ngle test

criterion for a wetland), Mr. Hickman stated that he could

make that determination with "100 percent certainty." Mr.

Hickman concurred with the findings in the earlier inspection

report, including one that the filled area is located entirely

wit hin a forested floodplain, which is both a surface water

and a wetland due to regular flooding in the area for

sustained periods of time. Photographs received in evidence,

and testimony by Department representatives, confirm that the

flooding occurs on a regular basis. See also Finding of Fact

13, supra . Significantly, Mr. Hickman observed that

additional filling had occurred since the first inspection

some eighteen months earlier, and that there were two signs on

the front of his property reading "Neede d Clean Fill."

Finally, the location of two large cypress trees on the

property suggested that an intact and mature floodplain

existed before the alterations occurred.

19. The filling poses a threat to the functions of the

land, such as vegetation and ha bitat. Therefore, removal of

the concrete debris and sand is necessary in order to restore

those functions. While the Department would not promise that

he could do so, it did represent that it would consider

Respondent's request to remove the debris and sand to the

upland area of his property, which would be much less

expensive than hauling it offsite.

20. At hearing, Respondent acknowledged that despite a

warning by the Corps in 1986 that the filling was illegal, he

has continued to engage in that activ ity for at least two

reasons: to prevent flooding of his property and to prevent

contaminated River water from reaching his fish ponds. He

further acknowledged that as recently as 2003 he allowed

several trucks to dump concrete debris and sand onto his

p roperty. (The concrete debris was obtained from a local

Walmart store.)

21. Respondent justified his actions in part on the

ground that the Corps failed to respond to his letter in March

1987, and he assumed that this was an indication that the

filling was legal. He also contended that the filled area was

originally uplands when he purchased the property, but it

changed to wetlands due to increased runoff from heavy

development in the area and the construction of a dam

downstream which caused the River to overflow during heavy

rains. As a consequence, his property and others in the area

(such as homes on Cyril Drive) have been prone to flooding.

However, Mr. Hickman established that a floodplain existed on

the property before any filling occurred. In any event, the

Department has jurisdiction over both natural and artificial

wetlands, and permits are needed for filling either type of

wetland. Therefore, while the filling may have been performed

for a salutary purpose, after 1984 he needed a permit to do so

(assuming that such activities in a wetland are permittable).

The fact that the land is zoned agricultural by Hernando

County does not negate this requirement. 5 Finally, a

contention that a wetland is changed to uplands by merely

placing dry dirt onto the wetland has been rejected. The land

still remains a wetland for jurisdictional purposes.

22. Respondent never filed for an after - the - fact permit

(as suggested by the Corps in 1987) because it was too

"complicated" to fill out the form. He conce ded, however,

that he did not ask the Department for assistance in doing so.

23. Except for the explanations discussed above,

Respondent presented no mitigating evidence. He has asked

that due to his financial circumstances the amount of the fine

be mode rated or forgiven.

24. At hearing, three Tampa District Office employees

established that they spent a total of 70 hours of time on

this case. At their hourly rate of pay, this totals $1,850.00

in investigative costs. In addition, Mr. Hickman was requi red

to perform a wetland determination on the property. The

normal charge for an assessment on a property of this size is

$550.00. The reasonableness of these amounts was not

disputed by Respondent. However, the Department is seeking

reimbursement of o nly $500.00.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 403.121, Florida

Statutes.

26. Section 403.121(2), Florida Statute s, prescribes the

administrative enforcement process for the Department "to

establish liability and to recover damages for any injury to

the air, waters, or property . . . of the state caused by any

violation." Under that process, the Department is author ized

to "institute an administrative proceeding to order the

prevention, abatement, or control of the conditions creating

the violation or other appropriate corrective action." §

403.121(2)(b), Fla. Stat. The process is initiated by "the

department's ser ving of a written notice of violation upon the

alleged violator by certified mail." § 403.121(2)(c), Fla.

Stat. If a hearing is requested by the alleged violator, "the

department has the burden of proving with the preponderance of

the evidence that the r espondent is responsible for the

violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the

administrative law judge shall issue a final order on all

matters, including the imposition of an administrative

penalty." Id.

27. In Count I of its Notice, the Department has alleged

that Respondent "filled approximately .17 acres of wetlands on

property without the required permit." Count II seeks the

recovery of "expenses incurred to date while investigating

this matter in the amount of not less than $500.00. "

28. The issue in this case is whether Respondent filled

wetlands on his property without a permit, in violation of

Florida Administrative Code Rule 62 - 343.050. Paragraph (1) of

the rule provides that "a noticed general, standard general,

or individua l environmental resource permit must be obtained

from the Department . . . prior to . . . filling in, on, or

over wetlands and other surface waters . . . ." Respondent is

also charged with violating Section 403.161(1)(b), Florida

Statutes, which makes it unlawful to "violate or fail to

comply with any rule . . . adopted . . . by the department

pursuant to its lawful authority."

29. By a preponderance of evidence, the Department has

established that the filled area on Respondent's property is

wetlands, a s defined by statute and rule, and that Respondent

did not obtain a permit to fill that area. Therefore, the

charge in Count I has been sustained.

30. Section 403.121(3), Florida Statutes, sets forth the

administrative penalties that must be imposed (abs ent

mitigating circumstances) for specified violations. Paragraph

(3)(c) provides that "the department shall assess a penalty of

$1,000 for unpermitted or unauthorized dredging and filling .

. . plus $2,000 if the dredging and filling occurs in an . . .

O utstanding Florida Water." Therefore, because the filling

here occurred in an area connected to an OFW, absent

mitigating circumstances, an administrative penalty of

$3000.00 must be imposed.

31. Section 403.121(10), Florida Statutes, provides the

foll owing broad guidelines on the issue of mitigation:

(10) The administrative law judge may

receive evidence in mitigation. The

penalties identified in subsection (3),

subsection (4), and subsection (6) may be

reduced up to 50 percent by the

administrative law judge for mitigating

circumstances, including good faith efforts

to comply prior to and after the discovery

of the violation by the department. Upon

an affirmative finding that the violation

was caused by the circumstances beyond the

reasonable contro l of the respondent and

could not have been prevented by the

respondent's due diligence, the

administrative law judge may further reduce

the penalty.

32. Here, there were no "good faith efforts to comply

prior to and after the discovery of the violation by the

department." (Had Respondent agreed to remove the fill after

the first warning letter was sent, or even after the first

inspection, it is likely that an enforcement action would not

have been initiated.) For example, the evidence shows that

Respon dent continued to fill the property even after the first

inspection was made, and when the property was inspected in

November 2004, there were two signs on the property stating

that clean fill was needed.

33. At the same time, there was no evidence to s how that

"the violation was caused by circumstances beyond the

reasonable control of the respondent and could not have been

prevented by the respondent's due diligence." While

Respondent may have been well - intentioned in trying to prevent

flooding on the backside of his property, there are no

circumstances present here which would allow a mitigation of

the statutory penalty. 7 Compare Department of Environmental

Protection v. Holmes Dirt Service, Inc. , 864 So. 2d 507 (Fla.

1st DCA 2004)(Benton, J., dissent ing)(where competent

substantial evidence to show that violations were beyond the

landowner's control, order mitigating fine was sustained).

Significantly, in his dissent, Judge Benton notes that

inadequate financial resources to pay a fine is not a

mitig ating circumstance contemplated by the statute. Holmes

at 508.

34. Section 403.141(1), Florida Statutes, allows the

Department to recover "the reasonable costs and expenses of

the state" in investigating matters such as this. Here, even

though the Dep artment has established that its expenses were

much higher, it is only seeking recovery of $500.00. That

amount was not contested and is found to be reasonable.

35. Finally, in its Proposed Final Order, the Department

has suggested specific corrective action that should be taken

by Respondent, which appears to be reasonable and is hereby

approved. (Only the broad framework of corrective action -

removing the fill - was addressed at the final hearing.) More

specifically, Respondent shall comply with th e following

requirements:

1. Comply with all Department rules

regarding dredging and filling within

surface waters or wetlands. He shall

correct and address all violations in the

time periods below and shall immediately

comply with all applicable rules i n Florida

Administrative Code Chapters 62 - 340 and 62 -

343.

2. Effective immediately and hereafter he

shall not conduct any dredging, filling, or

construction activities on or within the

landward extent of waters of the State

without first obtaining a vali d Department

permit or written notification from the

Department that the activities appear to be

exempt as proposed from Department

permitting requirements.

3. Notify the Department at least 48 hours

prior to the commencement of work under

this Final Ord er.

4. Prior to beginning removal of

unauthorized fill, he shall properly

install and maintain sedimentation and

erosion control measures (as indicated in

Figure 1 attached to this Final Order)

around the perimeter of the area to be

restored. The sedime ntation and erosion

control measures such as staked hay bales

and/or silt screens shall remain in place

for the duration of the restoration

activities to control turbidity and protect

adjacent wetlands. Respondent shall be

responsible for inspecting and m aintaining

sedimentation and erosion control measures

so that no violations of state water

quality standards occur outside the

restoration area.

5. Within 30 days of the effective date of

this Order he shall remove the approximate

0.17 acres of fill from the wetland area

indicated on Figure 1. The material shall

be placed in an upland location that will

not discharge into wetlands or surface

waters of the State.

6. Once the unauthorized fill has been

removed, he shall restore any damage to the

wetlands by reestablishing the preexisting

elevations and allowing natural re -

vegetation to occur within the restoration

area. Any restoration required pursuant to

this paragraph must be completed within 10

days of the removal of fill as outlined in

paragraph 5.

7. Allow all authorized representatives of

the Department access the property at

reasonable times for the purpose of

determining compliance with the terms of

this Order and the rules and statutes of

the Department.

8. Within 30 days of completing the

corrective action described within

paragraphs 3, 4, 5, and 6 he shall:

a. Provide written notification to the

Department that the corrective actions have

been completed. A site inspection will be

scheduled to verify that all of the

restoration actions h ave been

satisfactorily accomplished.

b. Submit enough color photographs to show

the entire completed restoration area taken

from fixed reference points.

c. Submit a plan view drawing that clearly

shows the locations from which the

photographs were ta ken.

9. Within 30 days of the effective date of

this Order, pay $3,000.00 to the Department

for administrative penalties imposed in the

Notice of Violation. Payment shall be made

by cashier's check or money order payable

to the "State of Florida Departm ent of

Environmental Protection" and shall include

OGC Case No. 04 - 0308E and the notation

"Ecosystem Management and Restoration Trust

Fund." The payment shall be sent to the

Florida Department of Environmental

Protection, ATTN: David Bryon Brown, 3804

Co conut Palm Drive, Tampa, Florida 33619.

10. Within 30 days of the effective date

of this Order pay $500.00 to the Department

for costs and expenses. 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 Number 04 -

0308E and the notation "Ecosystem

Management and Restoration Trust Fund."

The payment shall be sent to the Florida

Department of Environmental Protection,

ATTN: David Byron Brown , 3804 Coconut Palm

Drive, Tampa, Florida 33619.

Respondent may, of course, seek clarifying advice from the

Department, if necessary, regarding these conditions.

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the charge s in the Notice of Violation,

Orders for Corrective Action, and Civil Penalty Assessment are

sustained, and Respondent shall pay the administrative fine

and costs and take the corrective action described above.

DONE AND ORDERED this 18th day of February, 2 005, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SU NCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of February, 2005.

ENDNOTES

1/ All future references are to Florida Statutes (2004).

2/ Besides being called as a witness for the Department,

Respondent also testified on his own behalf during his case - in -

chief. Although Respondent objected to being called as a

witness by the Department, implying that perhaps a Fifth

Amendment privilege might apply, his deposit ion had been taken

prior to the hearing (at which time essentially the same

questions were asked) and no assertion of privilege was made at

that time. Assuming, but not deciding, that a Fifth Amendment

privilege may apply in this type of quasi - penal proce eding,

Respondent has waived that privilege by submitting to the

deposition and testifying on his own behalf at the final

hearing. In any event, the Department has substantiated the

charges even if Respondent's testimony during the Department's

case - in - chief is disregarded.

3/ Pastor Sherlin and Mr. Myers generally testified that

Respondent is a person of integrity and has a reputation for

telling the truth. Neither witness had any knowledge about the

specific issues in this case.

4/ On February 16, 2005, Mr. William E. Sanderson filed a

letter on behalf of Respondent. Because the record in this

matter was closed on January 19, 2005, the letter has not been

considered.

5/ The filled area is rectangular in shape and measures

approximately 235 fee t by 42 feet by 33 feet, or around 8,800

square feet.

6/ Respondent cited no authority for the proposition that

simply because wetlands are zoned agricultural, they are exempt

from the Department's jurisdiction. Moreover, there was no

proof that the fil led area was being used for agricultural

purposes.

7/ The circumstances under which a fine may be mitigated are

quite specific. First, there must be a good faith effort to

comply "prior to and after the discovery of the violation by

the department." He re, Respondent continued filling his land

even after a warning letter was sent. Second, the violation

must be caused by circumstances beyond the reasonable control

of the landowner. While the flooding was not within

Respondent's control, the filling was. Third, it must be shown

that the violation could not have been prevented by

Respondent's due diligence. Had Respondent used due diligence,

he would have sought the Department's advice as to what actions

were lawful, especially after being told as early as 1986 that

the filling may be illegal.

COPIES FURNISHED :

Alissa Blank, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Ben A. Leasure

5345 Olivet Drive

Dade City, Florida 33523 - 9019

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boul evard

Mail Station 35

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 Distri ct 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.