06-004508 Barbara Ritch Jackson; Tiger Joint Ventures; Lanikai Investments, Llc; W. Shouppe Howell; And Murl B. Howell vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, August 21, 2008.

Summary: Recommend denial of Petitioners` after-the-fact permit for coastal armoring structure because structure extends too far seaward onto active beach and into sea turtle nesting habitat. Equitable estoppel was not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA RITCH JACKSON; TIGER )

JOINT VENTURES; LANIKAI )

INVESTMENTS, LLC; W. SHOUPPE )

HOWELL; and MURL B. HOWELL, )

)

Petitioners, )

)

vs. ) Case No. 06-4508

)

DEPARTMENT OF ENVIRONMENTAL PROTECTION, )

)

)

Respondent, )

)

and )

)

CARIBBEAN CONSERVATION CORPORATION, INC., d/b/a SEA )

TURTLE SURVIVOR LEAGUE, )

)

)

Intervenor. )

)

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on October 1-3,

2007, and January 16-18, 2008, in Santa Rosa Beach, Florida.

APPEARANCES

For Petitioners Barbara Ritch Jackson (Jackson),

W. Shouppe Howell and Murl B. Howell (the Howells):

William L. Hyde, Esquire

Gunster, Yoakley & Stewart

215 South Monroe Street, Suite 618

Tallahassee, Florida 32301

For Petitioner Lanikai Investments, LLC (Lanikai):

Gary A. Shipman, Esquire 1 /

Dunlap, Toole, Shipman & Whitney, P.A.

1414 County Highway 283 South, Suite B

Santa Rosa Beach, Florida 32459

For Petitioner Tiger Joint Ventures (Tiger):

Franklin H. Watson, Esquire 2 /

5365 East Coast Highway 30-A, Suite 105

Seagrove Beach, Florida 32459

For Respondent: Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenor: Brett Michael Paben, Esquire

WildLaw

233 3rd Street North, Suite 203

St. Petersburg, Florida 33701-3818

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection should approve Petitioners’ application for an after-

the-fact permit for a coastal armoring structure.

PRELIMINARY STATEMENT

On October 16, 2006, the Department of Environmental

Protection (Department) gave notice of its intent to deny

Petitioners’ application for an after-the-fact permit for a

coastal armoring structure. On November 1, 2006, Petitioners

timely filed a Petition for Formal Administrative Hearing with

the Department contesting the denial of their permit

application.

On November 7, 2006, the Department referred the matter to

the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge to conduct the hearing

requested by Petitioners. The referral was received by DOAH on

November 9, 2006.

On December 29, 2006, the Petition for Leave to Intervene

filed by Caribbean Conservation Corporation, Inc., d/b/a Sea

Turtle Survivor League (CCC), was granted “subject to proof of

the allegations relating to standing at the final hearing.” CCC

opposes the issuance of the permit, and is aligned with the

Department.

The final hearing was originally scheduled to begin on

February 6, 2007, but it was continued six times at the request

of the parties. The final hearing was held over a period of six

days, starting on October 1, 2007, and concluding on January 18,

2008.

Jackson, the Howells, and Tiger were granted leave to file

an amended petition for hearing, which they did on June 27,

2007. Lanikai was also granted leave to file an amended

petition, which it did on August 9, 2007. The amended petitions

added allegations concerning equitable estoppel.

At the final hearing, Jackson, the Howells, and Tiger

presented the testimony of Frank Watson, Dr. Lee Harris

(expert), and Dr. John Fletemeyer (expert), and the deposition

testimony of Daniel Arner; Lanikai presented the testimony of

Richard Gray and Mikel Lee Perry; the Department presented the

testimony of Jim Martinello, Dr. Robin Trinedell (expert), Perry

Ponder (expert), Tony McNeal, and Michael Barnett; and CCC

presented the testimony of Gary Appleson and Christian Wagley.

The areas in which the expert witnesses were tendered and

accepted are set forth in the Transcript.

The following exhibits were received into evidence: Joint

Exhibit 1; Petitioners’ Exhibits 1 through 6, 6A, 7 through 12,

17, 25, 27, 28, 30, 32, 43 through 47, 51 through 56, 62, and

67; and the Department’s Exhibits 1 through 5, 11, 12, 14

through 20, 24, 35, 36, 38, 40 through 42, and 49(79) through

49(87). Petitioners’ Exhibits 13 through 16 and the

Department’s Exhibits 13 and 29 were offered, but not received.

Official recognition was taken of Section 161.085, Florida

Statutes (2005); Section 161.085, Florida Statutes (2006);

Sections 161.085, 161.053, 161.011 through 161.242, and 370.12,

Florida Statutes (2007) 3 / ; and Florida Administrative Code Rule

Chapters 62B-33 and 62B-55. 4 /

The Transcript of the final hearing was filed on

November 7, 2007 (Volumes I though VI), and April 28, 2008

(Volumes VII through XI). The parties initially requested and

were given 45 days from the latter date to file proposed

recommended orders (PROs), but the deadline was subsequently

extended to July 31, 2008, based upon Lanikai’s unopposed

motion. PROs were filed by all of the parties except for Tiger.

The PROs have been given due consideration.

FINDINGS OF FACT

A. Parties

1. Jackson owns the single-family residence located at

210 Winston Lane in the Inlet Beach area of south Walton County,

just to the east of Rosemary Beach.

2. The Howells own the single-family residence located at

220 Winston Lane, immediately to the east of the Jackson

property.

3. The Jackson and Howell residences are “eligible” and

rules. The residences were constructed before March 17, 1985,

and have been determined to be vulnerable to damage from high

frequency coastal storm events.

4. Lanikai owns Parcel No. 36-3S-18-16100—000-1313, which

is an undeveloped lot immediately to the east of the Howells’

property.

5. Tiger owns Parcel No. 36-3S-18-16100-000-1310, which is

an undeveloped lot immediately to the east of the lot owned by

Lanikai.

6. Together, the Lanikai and Tiger lots are less than

75 feet wide.

7. The Department is the state agency responsible for

regulating construction seaward of the coastal construction

control line (CCCL), including coastal armoring structures.

8. CCC is a Florida not-for-profit corporation

headquartered in Gainesville. The organization was established

more than 50 years ago for the purpose of protecting sea turtles

and their habitat, and it carries out this mission through

research, education, and advocacy.

9. CCC has between 7,000 and 8,000 members worldwide, with

approximately 900 members in Florida and 26 members in Walton

County.

B. Background

10. In April 2004, the dune on Petitioners’ properties

extended approximately 50 feet seaward of the Jackson and Howell

residences.

11. The dune was severely damaged by a series of

hurricanes in 2004 and 2005.

12. In July 2005, after Hurricane Dennis, the dune

extended only six feet seaward of the Jackson and Howell

residences.

13. Shortly after Hurricane Dennis, Jackson and the

Howells placed a significant volume of sand-fill immediately

seaward of their homes adjacent to the post-Hurricane Dennis

toe-of-dune as an emergency protection measure.

14. The sand-fill eliminated the immediate threat to the

residences, but did not offer any long-term protection against

future storm events.

15. On July 22, 2005, Jackson received a building permit

from Walton County to construct a “temporary seawall” on her

property.

16. Walton County was authorized at the time to issue

emergency permits for temporary armoring structures under

Section 161.085(3), Florida Statutes (2005).

17. On August 30, 2005, a Department employee spoke with

Jackson and advised her that the Walton County permit only

allowed construction of a temporary armoring structure and that

she would have to get a permit from the Department if she

planned to keep the structure in place.

18. On September 6, 2005, Walton County issued a building

permit for a “temp[orary] retaining wall” for the properties at

210, 220, and 240 Winston Lane. Attached to the permit is a

rough sketch of a cross-section of a “Protech [sic] Tube” with a

27-foot width.

19. The property at 240 Winston Lane is owned by the

Carnrites and is immediately to the east of the undeveloped lot

owned by Tiger. There is a single-family residence on the

Carnrite property, which like the Jackson and Howell residences,

is an “eligible” and “vulnerable” structure under the

Department’s coastal armoring rules.

20. After Hurricane Dennis, the Carnrites installed a

vertical wooden retaining wall seaward of their residence. The

wall was still in place as of the date of the final hearing, but

it has not been permitted by the Department.

21. The Department denied the Carnrites’ application for

an after-the-fact permit for the wall because according to the

Department’s witnesses, the wall is not sited as far landward as

practical.

22. The Department does not consider the wall on the

Carnrite property to be an “existing coastal armoring structure”

because the wall has not been permitted and is not

grandfathered. 5 /

23. Neither of the building permits issued to Petitioners

by Walton County mentioned the Lanikai or Tiger lots, but

Petitioners proceeded as if the September 6, 2005, permit

authorized construction of a temporary armoring structure on

those lots because the permit encompassed the properties to the

east and west of the lots.

24. On November 23, 2005, the Department sent letters to

Jackson and the Howells inquiring about the status of the

temporary armoring structures authorized by the Walton County

permits. At that point, construction had not commenced on the

ProTec Tube system at issue in this case (hereafter “the

Project”).

25. The letter advised Jackson and the Howells that they

would need to get a permit from the Department for any permanent

armoring structure and it “urged” them to meet with the

Department prior to installation of any structure.

26. More specifically, the letter stated:

The Department has already observed a number

of temporary structures under construction

that may not meet the requirements and

standards of Chapter 161.053, Florida

Statutes, and Rule 62B-33.0051, Florida

Administrative Code. If you do intend to

install the temporary structure approved by

Walton County, you are urged to contact

Department staff prior to installation of

the structure. You are reminded that under

the provisions of Section 161.085, Florida

Statutes, you must either remove the

temporary structure within sixty (60) days

of installation or apply to the Department

for a permit for a permanent coastal

protection structure.

27. The Department did not send similar letters to Lanikai

or Tiger because they were not referenced in any of the permits

issued by Walton County.

28. By the time of the Department’s letter, Petitioners

had already decided that they were going to install a geotextile

tube system as a permanent protection measure. They knew (or

should have known 6 / ) at the time that the Walton County permit

only authorized the construction of a temporary armoring

structure and that they would have to get a permit from the

Department for the structure to remain, and they assumed the

risk of proceeding with construction of the Project without a

permit from the Department because they did not think that they

would have a problem getting a permit based upon their

subjective beliefs regarding the benefits of geotextile tube

systems. 7 /

29. On December 26, 2005, Jackson sent a letter to the

Department stating that she had “read every word of the Florida

codes,” that there was “no way we could build anything

install Pro-Tect [sic] Tubes” that “will cost more than our

house is worth.”

30. The Department did not respond to this letter.

31. Construction on the Project started in January 2006,

and was completed in February or March 2006.

32. The Department was aware that Petitioners were

installing a geotextile tube system. The Department staff

photographed the installation of the system as part of their

weekly monitoring of the projects being constructed pursuant to

permits issued by Walton County after Hurricane Dennis.

33. The Department did not take any action to stop the

construction even though it was apparent from Jackson’s letter,

and the magnitude of the construction, that Petitioners intended

the Project to be permanent, not temporary.

34. At the time, the Department did not believe that it

had the authority to stop construction of the coastal armoring

projects that were being undertaken pursuant to a permit issued

by Walton County under Section 161.085(3), Florida Statutes

(2005).

35. However, the Department staff could have raised

concerns about the location or extent of the Project during

construction even though they might not have been able to stop

the construction. This, in turn, may have allowed Petitioners

to modify the Project during construction, as was done in the

case of another geotextile tube system installed in south Walton

County after Hurricane Dennis. 8 /

36. In May 2006, Petitioners applied for an after-the-fact

permit for the Project. The application was designated File No.

WL-914 AR ATF, and was deemed complete as of July 20, 2006.

37. On October 16, 2006, the Department gave notice of its

intent to deny the permit application and ordered Petitioners to

remove the Project and restore the area to the condition that

existed prior to the placement of the structure.

38. On November 1, 2006, Petitioners timely filed a

petition for administrative hearing challenging the denial of

their after-the-fact permit application.

C. The Project

(1) Generally

39. The Project is an approximately 300-foot long, two-

tiered, sand-filled geotextile system. The tubes are bounded on

the east and west ends by “return walls” made of Endurance

composite sheet-pile to prevent scouring.

40. Each tier of the system consists of three geotextile

protects against erosion. Each tier is approximately 25 feet

wide. The lower tier was placed at an elevation of two feet

above sea level and the upper tier was placed at an elevation of

eight feet above sea level.

41. The slope of the Project is approximately four-to-one,

which is a much flatter profile than the natural dunes in Walton

County, including those in the vicinity of Petitioners’

properties.

42. After the geotextile tubes were installed, they were

covered with sand that was planted with native salt-tolerant

vegetation. The “as built” drawings presented at the final

hearing show three to four feet of sand cover over the tubes,

but the actual present extent of the sand cover is unknown.

43. Petitioners are willing to agree to a permit condition

requiring them to maintain at least three feet of sand cover

over the tubes. They are also willing to record a deed

restriction on their properties so that this requirement would

bind future property owners.

44. The Project extends from the western edge of the

Jackson property to the eastern edge of Tiger’s lot. The

Project’s eastern return wall abuts the wall on the Carnrite

property.

45. The Project cost Petitioners more than $780,000, not

including the legal and other costs associated with this

proceeding. The cost was allocated amongst the Petitioners as

follows: Jackson (52.89 percent, approximately $413,000);

Howells (20.06 percent, approximately $157,000); Lankai (14.42

percent, approximately $113,000); and Tiger (12.63 percent,

approximately $99,000).

46. The Project is located seaward of the CCCL.

47. The precise location of the Project is unknown. The

signed, sealed “as built” drawings submitted to the Department

in October 2006 are inconsistent in several material respects

with the “corrected” unsigned and unsealed drawings presented at

the final hearing. It is impossible to determine the precise

location of the Project because it is buried under the sand.

48. The unsigned, unsealed drawings presented at the final

hearing (which the engineer of record described as “pretty

accurate”) show the landward edge of the Project approximately

26 feet seaward of the Jackson and Howell residences, which is

seaward of the post-Hurricane Dennis toe-of-dune and seaward of

much of the sand-fill placed on the Jackson and Howell property

immediately after the hurricane.

49. The drawings show the seaward edge of the Project

extending approximately 76 feet seaward of the Jackson and

Howell residences, which, as discussed below, is seaward of the

pre-hurricane dune on Petitioners’ properties.

(2) Siting and Design Issues

50. The Project, like any coastal armoring structure, has

the potential to adversely impact the beach-dune system by

interfering with natural fluctuations of the shoreline caused by

wind and waves.

51. The potential for adverse impacts of a coastal

armoring structure can be minimized by siting the structure as

far landward as practical and by limiting the extent of the

structure’s encroachment onto the active beach. Design features

of the structure can also minimize adverse impacts.

52. Geotextile tube systems are designed to dissipate wave

energy as the wave runs up the slope. This helps to reduce

erosion and scour.

53. Vertical seawalls, by contrast, refract wave energy,

which can result in increased scour and beach erosion seaward of

the wall. Toe scour protection at the base of the wall is

necessary to minimize erosion and scour and to maintain the

integrity of the wall.

54. The Department uses the post-hurricane toe-of-dune as

the baseline for determining whether a coastal armoring

structure has been sited as landward as practical. That same

baseline is used for determining whether a structure is eligible

and vulnerable under the Department’s rules.

55. Conflicting evidence was presented as to whether the

Project was sited as far landward as practical. Petitioners’

witnesses testified that the Project could not have been sited

any further landward without undermining the integrity of the

Jackson and Howell residences during construction. The

Department’s witnesses testified that the Project (or some other

type of armoring structure) could have been sited closer to the

residences than the Project was sited.

56. The landward extent of the Project is seaward of much

of the sand-fill placed on the Jackson and Howell property after

Hurricane Dennis. This, however, does not mean that the Project

was not sited as landward as practical.

57. First, the post-Hurricane Dennis toe-of-dune was only

six feet from the Jackson residence and even the Department’s

witnesses acknowledged that armoring structures typically cannot

be placed closer than 20 feet of existing structures.

58. Second, the more persuasive evidence establishes that

this geotextile tube system could not have been sited any

further landward on Petitioners’ property.

59. This does not mean, however, that the geotextile tube

system installed by Petitioners was the most appropriate

armoring structure for the site. On this issue, the more

persuasive evidence establishes that the Project extends further

seaward than would an alternative type of armoring structure,

such as a vertical seawall with toe scour protection or a sand

bag revetment with a greater slope than the Project ( e.g. , two-

to-one rather than four-to-one). The concerns expressed by

Petitioners’ witnesses concerning the design challenges and

potential adverse impacts of alternative structures were not

persuasive.

60. The more persuasive evidence also establishes that the

“footprint” of the Project extends further seaward than the

natural dunes that existed on Petitioners’ property before the

2004 and 2005 hurricanes. The seaward extent of the Project is

20 to 25 feet seaward of the pre-hurricane dune.

61. The Project also extends 10 to 20 feet further seaward

than the restored dunes in Rosemary Beach to the west of

Petitioners’ properties. The dunes at Rosemary Beach were

restored after Hurricane Dennis.

62. Persistent scarping has occurred along Petitioners’

properties as a result of frequent interaction between waves and

the seaward extent of the Project. The scarping is two to three

feet in height in some areas. Similar scarping has not been

observed on adjacent properties, which is another indication

that the Project extends too far seaward.

63. The Project’s geotextile tubes have remained covered

with sand despite the scarping and associated loss of sand along

the seaward edge of the Project. Most of the vegetation planted

in the sand covering the tubes remains in place, although there

has been a loss of some of the vegetation along the seaward edge

of the Project due to the scarping.

64. The active beach on Petitioners’ property seaward of

the Project is considerably narrower than the active beach on

nearby properties.

65. The Project is not uniform with the armoring structure

on the Carnrite property. The wall on the Carnrite property is

a vertical wooden wall, whereas the Project is a sand-covered,

geotextile tube system with a four-to-one slope.

66. The Project is not continuous with the armoring

structure on the Carnrite property. The geotextile tubes and

the eastern return wall for the Project extend considerably

further seaward than the wall on the Carnrite property, which

according to the Department, was installed too far seaward.

(3) Impacts on Sea Turtles

67. All of the sandy beaches around the state of Florida,

including the beaches of Walton County, are considered to be

nesting habitat for sea turtles.

68. The predominant species of sea turtle nesting in

Walton County is the loggerhead sea turtle, which is a protected

species.

69. Walton County beaches are not a major nesting area for

sea turtles. None of the beaches in the panhandle are

considered “major nesting beaches” under the Loggerhead Sea

Turtle Recovery Plan, and there may be as few as 10 turtles

nesting on the 22 miles of beach in Walton County.

70. Sea turtles typically nest at or near the seaward toe

of the dune or dune escarpment, they do not climb very far into

the dune, and they are not able to climb vertical escarpments of

as little as 18 inches in height.

71. The proximity of a nest to the waterline increases its

vulnerability to storms and tidal flooding.

72. The Department relies upon, and defers to the opinion

of the Fish and Wildlife Conservation Commission (FWCC) staff in

determining whether a coastal armoring structure will result in

a “take” of sea turtles or their nesting habitat.

73. FWCC staff concluded in a letter to the Department

dated October 12, 2006, that the Project “is reasonably certain

to result in a take as defined in Florida Statute 370.12(1)(c)2

for marine turtles attempting to nest in this area in the

future, particularly after storm events again erode the berm

width.”

74. The FWCC letter also objected to the use of the

geotextile tube system, stating that such structures are

“reasonably certain to cause [a] take” of sea turtles and their

nests.

75. The more persuasive evidence presented at the final

hearing did not support this latter claim. Rather, the more

persuasive evidence establishes that geotextile tube systems,

when properly designed, sited, and maintained with appropriate

sand cover do not adversely impact marine turtles and even

provide benefits that other armoring structures do not.

76. The FWCC letter states that the Project “directly

impacts approximately 0.4 acres of sandy beach.” That area is

the difference between the width of the active beach after

Hurricane Dennis and the width of the beach after the

installation of the Project, which according to the FWCC staff,

is the appropriate comparison for determining whether a “take”

has occurred.

77. FWCC does not have a rule on this issue, and the

evidence failed to establish the reasonableness of the approach

described by the FWCC witness presented by the Department. 9 /

78. Project extends more seaward than the dune that

existed on Petitioners’ properties prior to 2004 and 2005

hurricanes, and, therefore, the Project marginally reduced the

sea turtle nesting habitat on Petitioners’ properties. The

seaward extent of the Project and the scarping on its seaward

edge also have the potential to adversely impact sea turtle

nesting.

79. That said, there is no credible evidence that the

Project has actually deterred sea turtles from nesting on

Petitioners’ property or otherwise caused a “take” of sea

turtles. To the contrary, it is undisputed that sea turtles

nested seaward of the Project in 2006 and 2007.

80. The 2006 nest was successful. The 2007 nest was not

successful, but there is no credible evidence that the Project

contributed to the nest’s failure. Rather, the sea turtle

experts generally agreed that the nest failed because of

flooding caused by Hurricane Dean passing offshore.

81. In sum, although the evidence establishes that the

Project extends further seaward than did the existing, pre-

hurricane dune on Petitioners’ properties, the more persuasive

evidence to establishes that the encroachment did not cause a

“ significant habitat modification or degradation that kills or

injures marine turtles by significantly impairing essential

behavioral patterns, such as breeding, feeding or sheltering,”

which is the definition of “take.”

CONCLUSIONS OF LAW

A. Jurisdiction

82. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

B. Standing

83. Petitioners have standing because this proceeding will

determine whether their after-the-fact permit application will

be approved or denied. See § 120.52(12)(a), Fla. Stat.;

Maverick Media Group, Inc. v. Dept. of Transportation , 791 So.

2d 491 (Fla. 1st DCA 2001).

84. The standing of CCC to participate in this proceeding

was not contested, either in the Joint Pre-hearing Stipulation

or the PROs. Therefore, it is not necessary to determine

whether CCC has “automatic standing” under Section 403.412,

Florida Statutes, or whether it proved its standing under Agrico

Chemical Co. v. Department of Environmental Regulation , 406 So.

2d 478 (Fla. 2d DCA 1981), and/or Florida Homebuilders

Association v. Department of Labor and Employment Security , 412

43). 10 /

C. Permitting Criteria

(1) Generally

85. Petitioners have the burden to prove by a

preponderance of the evidence that their permit application

should be approved. See Dept. of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778, 787-89 (Fla. 1st DCA 1981);

§ 120.57(1)(j), Fla. Stat.

86. This is a de novo proceeding designed to formulate

final agency action rather than to review the Department’s

denial Petitioners’ permit application, and that preliminary

agency action is not entitled to a presumption of correctness.

See J.W.C. Co. , 396 So. 2d at 787-88; Capeletti Bros., Inc. v.

Dept. of General Servs. , 432 So. 2d 1359, 1363 (Fla. 1st DCA

1983) (proceedings under Section 120.57(1), Florida Statutes,

“are designed to give affected parties an opportunity to change

the agency’s mind”).

87. Section 161.085, Florida Statutes, “recognizes the

need to protect private structures and public infrastructure [ 11 /]

from damage or destruction caused by coastal erosion,” and to

that end, the statute sets forth “the state’s policy on rigid

coastal armoring structures.” See § 161.085(1), Fla. Stat.

88. The Department’s rules define “armoring” to include

“geotextile bags or tubes.” See Fla. Admin. Code R. 62B-

33.002(5).

89. Section 161.085(3), Florida Statutes (2005),

authorized local governments to issue emergency permits for

temporary rigid coastal armoring structures and to take other

emergency measures for the protection of private structures when

erosion occurs as a result of a storm event that threatens such

structures.

90. The Department had no authority in 2005 to revoke the

permitting authority granted to local governments under this

statute, but it does now. Compare § 161.085(3), Fla. Stat.

(2005) with § 161.085(3), Fla. Stat. (2006 and 2007).

91. Section 161.085(6), Florida Statutes, provided in

2005, and currently provides:

A rigid coastal armoring structure or other

structure constructed under the authority of

subsection (3) shall be temporary, and the

. . . private property owner shall remove

the structure or submit a permit application

to the department for a permanent rigid

coastal armoring structure, pursuant to s. .

. . 161.053, within 60 days after the

emergency installation of the structure . .

. .

92. The Department’s rules include the following

guidelines concerning temporary armoring structures:

Emergency Protection. Upon the occurrence

of a coastal storm which causes erosion of

the beach and dune system such that existing

structures have either become damaged or

vulnerable to damage from a subsequent

frequent coastal storm, pursuant to Section

162.085, F.S., . . . the governmental entity

may issue permits authorizing private

property owners within their jurisdiction to

protect their private structures. Emergency

protection measures shall be subject to the

following:

* * *

(c) Measures used for temporary

protection shall be the minimum required

. . . to protect the structure from imminent

collapse. Armoring or other measures shall

be sited and designed to minimize excavation

of the beach and frontal dune; impacts to

existing native coastal vegetation, marine

turtles, and adjacent properties; and

encroachment onto the beach. Temporary

protection shall be sited and designed to

facilitate removal.

* * *

(g) Temporary structures shall be removed

within 60 days of installation unless a

complete application for a permit seeking

authorization to retain the temporary

structure or to provide alternative

protection has been provided to the

Department pursuant to Sections 161.053 and

161.085, F.S. In order for a temporary

structure to remain in place, it must be

permitted and meet all eligibility, siting,

and design criteria for permanent armoring

provided in this rule chapter.

Fla. Admin. Code R. 62B-33.0051(5). See also Fla. Admin. Code

of armoring or other measures such as sand fill or expedient

foundation reinforcement to temporarily protect eligible

structures which are threatened by erosion as a result of recent

storm events”).

93. The Department may authorize construction of coastal

armoring seaward of an existing private structure if it

determines that the structure is “vulnerable to damage from

frequent coastal storms.” See § 161.085(2)(a), Fla. Stat.

94. The Department may authorize construction of coastal

armoring seaward of undeveloped property only if “such

installation is between and adjoins at both ends rigid coastal

armoring structures, follows a continuous and uniform armoring

structure construction line with existing coastal armoring

structures, and is no more than 250 feet in length.” See

§ 161.085(2)(c), Fla. Stat. This is commonly referred to as

“closing the gap.”

95. In addition to meeting the requirements of Section

161.085, Florida Statutes, an application for a coastal armoring

structure must also meet the requirements of Section 161.053,

Florida Statutes, which applies to all construction seaward of

the CCCL. See § 161.085(2), (6), Fla. Stat.; Fla. Admin. Code

R. 62B-33.0051(4) (“armoring shall meet all other applicable

provisions of this rule chapter”).

96. Section 161.053(1)(a), Florida Statutes, provides

that:

it is in the public interest to preserve and

protect [the beaches in this state] from

imprudent construction which can jeopardize

the stability of the beach-dune system,

accelerate erosion, provide inadequate

protection to upland structures, endanger

adjacent properties, or interfere with

public beach access. . . . . Special siting

and design considerations shall be necessary

seaward of established [CCCLs] to ensure the

protection of the beach-dune system,

proposed or existing structures, and

adjacent properties and the preservation of

public beach access.

97. Section 161.053(5)(a), Florida Statutes, authorizes

the Department to issue permits for construction seaward of the

CCCL upon consideration of:

1. Adequate engineering data concerning

shoreline stability and storm tides related

to shoreline topography;

2. Design features of the proposed

structures or activities; and

3. Potential impacts of the location of

such structures or activities, including

potential cumulative effects of any proposed

structures or activities upon such beach-

dune system, which, in the opinion of the

department, clearly justify such a permit.

98. The Department is also required to take into account

potential adverse impacts on sea turtles and their nesting

habitat when determining whether to issue a permit for

construction seaward of the CCCL. See §§ 161.053(5)(c),

370.12(1)(f)-(h), Fla. Stat.

99. The standards governing the construction of coastal

armoring structures are contained in Florida Administrative Code

Rule 62B-33.0051, which provides in pertinent part:

(1) General Armoring Criteria. . . . If

armoring is the selected option, the

following siting, design, and construction

criteria shall apply in order to minimize

potential adverse impacts to the beach and

dune system:

(a) Construction of armoring shall be

authorized under the following conditions:

1. The proposed armoring is for the

protection of an eligible structure [ 12 /] ; and

2. The structure to be protected is

vulnerable [ 13 /] . . .; or

3. A gap exists, that does not exceed 250

feet, between a line of rigid coastal

armoring that is continuous on both sides of

the unarmored property. . . . . Such

installation shall:

a. Be sited no farther seaward than the

adjacent armoring;

b. Close the gap between the adjacent

armoring;

c. Avoid significant adverse impacts to

marine turtles;

d. Not exceed the highest level of

protection provided by the adjoining walls;

and

e. Comply with the requirements of

Section 161.053, F.S.

* * *

5. The construction will not result in a

significant adverse impact.

* * *

(2) Siting and Design. Armoring shall be

sited and designed to minimize adverse

impacts to the beach and dune system, marine

turtles, native salt-tolerant vegetation,

and existing upland and adjacent structures

and to minimize interference with public

beach access, in accordance with the

following criteria:

(a) Siting. Armoring shall be sited as

far landward as practicable to minimize

adverse impacts while still providing

protection to the vulnerable structure. In

determining the most landward practicable

location, the following criteria apply:

1. Excavation shall be the minimum

required to properly install the armoring

and shall not result in the destabilization

of the beach and dune system seaward of the

armoring or have an adverse impact on upland

structures.

2. If armoring must be located close to

the dune escarpment in order to meet the

criteria listed above and such siting would

result in destabilization of the dune

causing damage to the upland structure, the

armoring shall be sited seaward of, and as

close as practicable to, the dune

escarpment.

3. Armoring shall be sited a sufficient

distance inside the property boundaries to

prevent destabilizing the beach and dune

system on adjacent properties or increasing

erosion of such properties during a storm

event. Return walls shall be sited as close

to the building as practicable while

ensuring the building is not damaged and

space is allowed for maintenance.

* * *

(b) Design. Armoring shall be designed

to provide protection to vulnerable

structures while minimizing adverse impacts

and shall be designed consistent with

generally accepted engineering practice.

The following criteria apply:

1. Coastal armoring structures shall be

designed for the anticipated runup,

overtopping, erosion, scour, and water loads

of the design storm event. . . . .

2. To minimize adverse impacts to the

beach and dune system, adjacent properties,

and marine turtles, the shore-normal extent

of armoring which protrudes seaward of the

dune escarpment, vegetation line, or onto

the active beach shall be limited to

minimize encroachment on the beach. In

areas with viable marine turtle habitat, the

highest part of any toe scour protection

shall be located to minimize encroachment

into marine turtle nesting habitat.

3. All armoring shall be designed to

remain stable under the hydrodynamic and

hydrostatic conditions for which they are

proposed. Armoring shall provide a level of

protection compatible with existing

topography, not to exceed a 50-year design

storm.

* * *

7. Armoring, which utilizes sand-filled

geotextile containers as the core of a

reconstructed dune for dune stabilization or

restoration activities, is acceptable where

it can be demonstrated that there is no

unauthorized take of marine turtles or

marine turtle habitat, and the shoreline

conditions are such that sufficient sand

cover over the strucure will be retained

except when the structure interacts with

waves or wave uprush during low frequency or

high energy storm events.

* * *

(4) In addition to the requirements

provided in this rule section, armoring

shall meet all other applicable provisions

of this rule chapter.

100. The “General Criteria” for construction seaward of

the CCCL is contained in Florida Administrative Code Rule 62B-

33.005, which provides in pertinent part:

(2) In order to demonstrate that

construction is eligible for a permit, the

applicant shall provide the Department with

sufficient information pertaining to the

proposed project to show that adverse and

other impacts associated with the

construction have been minimized and that

the construction will not result in a

significant adverse impact.

(3) After reviewing all information

required pursuant to this rule chapter, the

Department shall:

(a) Deny any application for an activity

which either individually or cumulatively

would result in a significant adverse impact

including potential cumulative effects.

. . .

(b) Deny any application for an activity

where the project has not met the

Department’s siting and design criteria; has

not minimized adverse and other impacts,

including stormwater runoff; or has not

provided mitigation of adverse impacts.

(4) The Department shall issue a permit

for construction which an applicant has

shown to be clearly justified by

demonstrating that all standards,

guidelines, and other requirements set forth

in the applicable provisions of Part I,

Chapter 161, F.S., and this rule chapter are

met, including the following:

* * *

(h) The construction will not cause a

significant adverse impact to marine

turtles, or the coastal system.

101. As used in these rules, “adverse impacts” and

“significant adverse impacts” mean:

(a) “Adverse Impacts” are impacts to the

coastal system that may cause a measurable

interference with the natural functioning of

the coastal system.

(b) “Significant Adverse Impacts” are

adverse impacts of such magnitude that they

may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topography or vegetation

such that the dune system becomes unstable

or suffers catastrophic failure or the

protective value of the dune system is

significantly lowered; or

2. Cause a take, as defined in Section

370.12(1), F.S., unless the take is

incidental pursuant to Section 370.12(1)(f),

F.S.

Fla. Admin. Code R. 62B-33.002(32).

(2) Jackson and the Howells

102. It is undisputed that the Jackson and Howell

residences are eligible and vulnerable structures, as those

terms are used in Florida Administrative Code Rule 62B-

33.0051(1)(a). Therefore, Jackson and the Howells are entitled

to install some type of armoring seaward of their residences.

103. The dispute as to Jackson and the Howells is whether

they are entitled to an after-the-fact permit for the specific

structure that they installed pursuant to the emergency permit

issued by Walton County, and more specifically, whether that

structure meets the applicable siting and design criteria in the

Department’s rules.

104. The Project fails to meet all of the permitting

criteria in Florida Administrative Code Rule 62B-33.005 because,

as detailed in the Findings of Fact, the more persuasive

evidence establishes that, due to the seaward extent of the

Project, the adverse impacts of the Project have not been

adequately minimized and the Project is likely to result in

significant adverse impacts to the beach-dune system.

105. The Project also fails to meet all of the permitting

criteria in Florida Administrative Code Rule 62B-33.0051.

Although, as detailed in the Findings of Fact, the more

persuasive evidence establishes that the Project was sited as

far landward as practical for the geotextile tube system that

was installed, the more persuasive evidence also establishes

that an alternative armoring structure could have been installed

to minimize the extent to which the armoring protruded onto the

active beach and into sea turtle habitat, thereby minimizing

impacts on the beach-dune system. Simply put, and contrary to

the argument in the PRO filed by Jackson and the Howells (at ¶

45), the Project was not the right armoring structure for this

site.

(3) Lanikai and Tiger

106. It undisputed that the Carnrite residence to the east

of the undeveloped lots owned by Lanikai and Tiger is an

eligible and vulnerable structure and that once armoring

structures are permitted and installed seaward of the Howell

residence and the Carnrite residence, there will be a “gap” of

less than 250 feet seaward of the undeveloped lots owned by

Lanikai and Tiger that can be closed with some type of armoring.

107. The disputes as to Lanikai and Tiger are (1) whether

they are presently eligible for a permit under the “close the

gap” statute and rule since the structures between which the gap

is being closed have not been permitted by the Department, and,

if so, (2) whether they are entitled to an after-the-fact permit

under the “close the gap” rule for the specific structure that

they installed pursuant to the emergency permit issued by Walton

County.

108. As to the first issue, although Section

161.085(2)(c), Florida Statutes, and Florida Administrative Code

Rule 62B-33.0051(1)(a)3 do not expressly require the armoring

structures between which the gap is being closed to have been

“permitted,” the Department construes the statute and rule in

that manner. Petitioners failed to show that this

interpretation is clearly erroneous, and to the contrary, it is

concluded that the Department’s interpretation of the “close the

gap” statute and rule is reasonable and logical.

109. As to the second issue, as detailed in the Findings

of Fact, the more persuasive evidence establishes that the

portion of the Project on the Lanikai and Tiger lots extends

significantly further seaward than the wall on the Carnrite

property and, therefore, does not comply with the requirement

that the armoring structure “[b]e sited no further seaward than

the adjacent armoring.” See Fla. Admin. Code R. 62B-

33.0051(1)(a)3.a. Additionally, for the reasons discussed above

with respect to Jackson and the Howells, the portion of the

Project on the Lanikai and Tiger lots does not meet all of the

other requirements of the “close the gap” rule, such as Florida

requirements of Section 161.053, F.S.) and 5 (“The construction

will not result in a significant adverse impact.”).

D. Equitable Estoppel

110. Petitioners invoke the doctrine of equitable estoppel

and argue that it would be “unreasonable, unjust, inequitable,

and just plain unfair” for the Department to deny their after-

the-fact permit application. See Jackson/Howell PRO, at ¶¶ 31-

35, 48-52.

111. Petitioners’ equitable estoppel argument is

essentially twofold. First, while acknowledging that the

Department never told them that they could construct the

Project, Petitioners argue that the Department “never took any

concrete, affirmative steps to advise them not to build the

Project.” Second, Petitioners argue that Department never

“raised a red flag or took any steps to advise Petitioners that

the Project would not pass permanent muster” even though it was

apparent from the construction that the Project was intended to

be more than temporary in nature.

112. “Equitable estoppel is applied against a state agency

only in exceptional circumstances and must include some positive

act on the part of a state officer upon which [the other party]

had a right to rely and did rely to her detriment.” Hoffman v.

Dept. of Management Servs. , 964 So. 2d 163, 166 (Fla. 1st DCA

2007) (emphasis supplied).

113. In order to demonstrate estoppel, Petitioners must

establish by clear and convincing evidence that (1) the

Department represented a material fact contrary to its later

asserted position; (2) Petitioners relied on the Department’s

earlier representation; and (3) Petitioners changed positions to

their detriment due to the Department’s representation and their

reliance thereon. Id. See also Dept. of Revenue v. Anderson ,

403 So. 2d 400 (Fla. 1981).

114. Petitioners failed to meet their burden of proof.

115. First, the Department did not make any affirmative

representations to Petitioners upon which they reasonably relied

to their detriment. To the contrary, the Department “urged”

Petitioners (at least those Petitioners who were identified in

the Walton County permits) to meet with the Department prior to

construction so that the Department could evaluate whether their

preferred structure could be permitted.

116. Second, there is no evidence that Petitioners relied

on any representations made by the Department or changed

positions to their detriment based upon such representations.

Petitioners decided on their own to install a geotextile tube

system based upon their subjective belief that the system met

the Department’s permitting criteria. The Department played no

role in Petitioners’ selection of the geotextile tube system

over some other type of armoring, and despite the Department’s

letters advising Petitioners (at least those whose were

identified in the Walton County permits) that they would have to

get permits for the system to remain, Petitioners proceeded with

the installation of the system without discussing the issue with

the Department.

117. Could the Department have done more once it became

aware of the extent of the Project, even if it did not believe

that it could not legally stop the construction? Perhaps.

However, the Department’s failure to advise Petitioners “not to

construction are not “positive acts” and are insufficient to

provide a basis for estoppel.

118. Moreover, on balance, the equities in this case weigh

against Petitioners because they effectively assumed the risk of

having to remove the Project by constructing what they intended

to be a permanent structure pursuant to a permit that they

clearly knew, or should have known, authorized the construction

of only a temporary structure.

119. Petitioners’ desire to protect their homes and

property is understandable, and the undersigned is not

unsympathetic to the situation in which Petitioners now find

themselves. However, as detailed in the Findings of Fact, the

more persuasive evidence establishes that Petitioners largely

brought this situation upon themselves by using a permit that

authorized the installation of a “temp[orary] retaining wall” to

install a $780,000 structure that they knew would require a

permit from the Department without consulting with the

Department prior to construction to determine whether the

Project would be permittable.

E. Remedy

120. The parties do not dispute that if the Department

ultimately denies Petitioners’ after-the-fact permit application

the Project must be removed.

121. That is the remedy contemplated by Section

161.085(6), Florida Statutes. See also § 161.053(7), Fla. Stat.

(“Any coastal structure erected, or excavation created, in

violation of the provisions of this section is hereby declared

to be a public nuisance; and such structure shall be forthwith

removed or such excavation shall be forthwith refilled

. . . .”); Fla. Admin. Code. R. 62B-33.0051(5)(g).

122. The October 16, 2006, letter denying the permit

application gave Petitioners a period of 60 days to remove the

structure, and also required:

The applicant shall coordinate with the

marine turtle permit holder for this segment

of beach to ensure protection to marine

turtles and their nests. If removal of the

structures cannot be safely completed due to

potential threats to marine turtles or their

nests, then the applicant shall remove the

structure after October 31 [] and before

March 1 []. In addition, any areas

disturbed during the removal process shall

be restored to the condition which existed

prior to the placement of the unauthorized

[structure].

123. These requirements are reasonable and should be

included as part of the final order, assuming that the final

order denies Petitioners’ after-the-fact permit application as

recommended herein.

124. That said, presumably if the Department approved a

permit for a different armoring structure, that structure could

be installed concurrent with the removal of the existing

structure in order to minimize the disturbance to the beach-dune

system and sea turtle habitat. The parties can and should work

together to achieve this end since it is undisputed that Jackson

and the Howells are, and Lanikai and Tiger will be (once the

location of the Howells’ and Carnrites’ armoring structures are

known), entitled to install some type of armoring structure to

protect their homes and property.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department issue a final order denying

Petitioners’ after-the-fact permit application, File No. WL-914

AR ATF.

DONE AND ENTERED this 21st day of August, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2008.

ENDNOTES

1 / Mr. Shipman filed a Notice of Substitution of Counsel on

April 12, 2007. Prior to that date, Lanikai was represented by

Mr. Hyde.

2 / Mr. Watson filed a Notice of Appearance and Substitution of

Counsel on January 15, 2008. Prior to that date (including the

first three days of the final hearing), Tiger was represented by

Mr. Hyde.

3 / Hereafter, all references to the Florida Statutes are to the

2007 version unless otherwise indicated.

4 / All references to the Florida Administrative Code are to the

June 2007 version of the Department’s rules that were officially

recognized at the final hearing. That said, it is noted that

the Department’s coastal armoring rules were recently amended

to, among other things, provide that armoring utilizing sand-

filled geotextile containers is governed by a new rule chapter,

62B-56, not Florida Administrative Code Rule 62B-33.0051, and

that local governments “shall not authorize the use of

geotextile containers” as emergency armoring. See Fla. Admin.

17, 2008). No party suggested that the amended rules should be

applied in this case, and it is also noted that several

provisions of the new rule chapter 62B-56 were challenged in

DOAH Case No. 08-2391RP, which is still pending.

5 / Transcript, at 1047 (testimony of Department witness Tony

McNeal).

6 / See Transcript, at 457-61 (testimony of Dick Gray, Lanikai’s

owner). Mr. Gray testified that he did not understand that the

Walton County permit only authorized construction of a temporary

structure and that it “came as a total shock” to him that the

Department’s approval of the Project would ultimately be

required. However, he admitted that he did not read the Walton

County permit or the rules and statutes governing permitting of

coastal armoring structures. Ignorance of the law is no excuse.

7 / The following testimony of Tiger’s co-owner is particularly

telling on this point:

Q: So you were aware of the risk that

this structure was temporary and was

permitted as a temporary structure and

needed a requirement or needed permanent

permit from the Department?

A: Well, it depends upon what you [sic]

defining risk. I personally felt like the

risk was nominal, if at all, given the way

the statute is written, given the aspects as

far as we were willing to put the structure

as close to the eligible structures as

possible. Given the fact that this product

is actually installed in other parts of the

State with [the Department]’s knowledge and

consent . . . . Given the fact that . . .

we can close the gap . . . . Given the fact

that I actually was willing to spend twice

as much money to buy a system that I thought

y’all would approve before a seawall. . . .

. I didn’t think that there was this kind

of risk, no. . . . . But if I would have

known at the time [that the permit might be

denied], I wouldn’t have taken this kind of

risk with my money, my partner’s money, Ms.

Jackson’s money, or anybody else.

Transcript, at 107-08 (testimony of Frank Watson). See also

Transcript, at 447-49, 451-52 (testimony of Mr. Gray regarding

his “research” into the benefits of geotextile tube systems).

8 / See Transcript, at 1321-22, 1329-30 (testimony of Mikel Lee

Perry regarding concerns raised by the Department staff during

construction of the two-tier geotextile tube system in front of

his residence and modifications that he made based upon those

concerns). The events described by Mr. Perry occurred “several

months” after the hurricane. Id. at 1322. Mr. Perry’s

testimony undercuts Petitioners’ estoppel argument because he is

a co-owner of the Tiger lot, and his testimony shows that he

(and, hence, at least one of the Petitioners) was clearly on

notice of potential permitting concerns with a two-tiered

geotextile tube system well before construction began on the

Project.

9 / The testimony of the FWCC witness presented by the Department

on this issue was unpersuasive and illogical, and is rejected.

See Transcript, at 770, 804-07 (testimony of Dr. Robin

Trinedell). The argument on this issue in CCC’s PRO ( e.g. , ¶

129) is likewise rejected. It simply makes no sense to suggest

that there has been a taking of sea turtle nesting habitat by

the installation of an armoring structure where (all other

things being equal) the width of the beach where the turtles

nest is the same after installation of the structure as it was

before the storm event creating the need for armoring.

10 / That said, it does not appear that Section 403.412, Florida

Statutes, confers standing on CCC because subsection (5) of the

statute requires the filing of a “verified pleading,” which was

not done in this case, and subsection (6) applies to the

initiation of a proceeding. Also, with respect to associational

standing, Florida Home Builders requires a “substantial number

of [the organization’s] members, although not necessarily a

majority,” to be substantially affected by the challenged agency

action, but in this case only 26 of CCC’s members –- which is

less than 0.4 percent of its total members and less than three

percent of its Florida members –- are conceivably affected by

the Project by virtue of residing in Walton County.

11 / “Public infrastructure” is defined as “public evacuation

routes, public emergency facilities, bridges, power facilities,

water or wastewater facilities, other utilities, or hospitals,

or structures of local governmental, state, or national

significance.” § 161.085(7), Fla. Stat. There is no credible

evidence that the coastal armoring structure at issue in this

case was intended to protect public infrastructure.

12 / “Eligible structures” are:

public infrastructure and private structures

qualified for armoring as follows:

* * *

(b) Private structures include:

1. Non-conforming habitable structures,

2. Major non-habitable structures which

are not expendable,

3. Expendable major structures which are

amenities necessary for occupation of the

major structure, and

4. Expendable major structures whose

failure would cause an adjacent upland non-

conforming habitable structure or major non-

habitable structure, which is not

expendable, to become vulnerable.

Fla. Admin. Code R. 62B-33.002(18).

13 / “’Vulnerable’ is when an eligible structure is subject to

either direct wave attack or to erosion from a 15-year return

interval storm which exposes any portion of the foundation.”

Fla. Admin. Code R. 62B-33.002(63).

COPIES FURNISHED :

Kelly L. Russell, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Brett Michael Paben, Esquire

WildLaw

233 3rd Street North

St. Petersburg, Florida 33701-3818

Gary A. Shipman, Esquire

Dunlap,Toole,Shipman & Whitney, P.A.

1414 County Highway 283 South

Suite B

Santa Rosa Beach, Florida 32459

Franklin H. Watson, Esquire

5365 East Coast Highway 30-A Suite 105

Seagrove Beach, Florida 32459

William L. Hyde, Esquire

Gunster, Yoakley & Stewart

215 South Monroe Street, Suite 618

Tallahassee, Florida 32301

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

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.