07-005216 James Hasselback vs. Daniel G. And Doris Wentz And Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, June 14, 2011.

Summary: Petitioner received constructive notice of agency action through his attorney and another property owner and did not timely file his petition. The Petition is dismissed, with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES HASSELBACK, )

)

Petitioner, )

)

vs. ) Case No. 07-5216

)

DANIEL G. AND DORIS L. WENTZ )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on November 4 and

5, 2009, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

Timothy J. Perry, Esquire

Angela K. Oertel, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondents: Thomas G. Tomasello, Esquire

(Wentzes) Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303-6458

M. Drew Parker, Jr., Esquire

Ard, Shirley & Rudolph, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

For Respondent: Kelly L. Russell, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issues are whether the Department of Environmental

Protection's (Department's) proposed agency action to issue a

coastal construction control line (CCCL) permit to Respondents,

Daniel G. and Doris L. Wentz (Wentzes or applicants), affects

the substantial interests of Petitioner, James Hasselback, and

if so, whether he timely filed his request for a hearing.

BACKGROUND

The facts which precede the filing of Mr. Hasselback's

request for a hearing in this case are lengthy and complicated.

A detailed summary of these facts is found in a preliminary

Order Granting Motion to Dismiss entered on January 25, 2008.

The undisputed facts in that Order have been used, in part, in

making Findings of Fact in the Background portion of this

Recommended Order, mainly for the purpose of relating the

history of this dispute. Here, it is only necessary to note

that on September 8, 2004, the Department issued a Final Order

expressing its intent to issue Permit GU-409 to the Wentzes

authorizing them to construct a single-family dwelling seaward

of the 30-year erosion projection on Parcel A of their property

located on Cape San Blas near State Road 30E in Gulf County,

Florida. The property is divided into Parcels A and B.

On October 26, 2007, or more than three years later,

Mr. Hasselback, who owns a townhome in a nearby five-unit

structure known as the Cape Haven Townhomes, filed with the

Department his Petition for Formal Administrative Hearing

(Petition) challenging the issuance of Permit GU-409. In the

Petition, he alleged that he "never received notice of the

agency action to issue permit GU-409 pursuant to Florida

Administrative Code Rule 62-110.106(2), nor was he provided a

point of entry into administrative proceedings under Chapter

120, Florida Statutes." The Petition was referred by the

Department to the Division of Administrative Hearings (DOAH) on

November 10, 2007, with a request that an administrative law

judge conduct a hearing. Besides that Petition, two other Cape

Haven owners, Richard Barnett (Barnett) and Laurie Hosford

(Hosford), filed a joint request for a hearing challenging the

same permit. Both requests were assigned Case No. 07-5216.

Barnett and Hosford were later dismissed as parties by Order

dated January 25, 2008, on the ground their request for a

hearing was untimely.

During the course of this proceeding, a number of

procedural and discovery disputes arose, and their disposition

is found in various preliminary orders. One pending matter is

the Wentzes' Motion in Limine (Motion), which seeks to prohibit

Petitioner from introducing any evidence regarding the design

and construction of the Wentzes' proposed home on the theory

that the Department no longer has jurisdiction to consider the

impacts of wind and waterborne missiles during a storm event.

At hearing, a ruling on the Motion was reserved and testimony on

that matter was conditionally allowed. A resolution of that

issue is made in this Recommended Order.

By Notice of Hearing dated December 26, 2007, a final

hearing was scheduled on March 10-12, 2008, in Tallahassee,

Florida. The Wentzes' Motion for Continuance was granted, and

the matter was rescheduled to May 20-22, 2008, at the same

location. On May 9, 2008, the Wentzes filed a Motion for

Abeyance pending the completion of a beach renourishment project

in the area of the subject property. That request was granted,

the final hearing was canceled, and the matter was temporarily

abated. At the request of the parties, a final hearing was

rescheduled to November 4 and 5, 2009, in Tallahassee, Florida.

A Joint Prehearing Stipulation (Stipulation) was filed by the

parties on November 2, 2009.

At the final hearing, the Wentzes stipulated that the

proposed activity does not meet Department criteria for issuing

a CCCL permit. Pursuant to a Settlement Agreement executed by

the Wentzes and Department in August 2007, however, and as

consideration for the Wentzes dismissing an inverse condemnation

suit and two administrative actions and giving a conservation

easement to the State, the Department agreed that they could

construct a single-family home on the property under Permit GU-

409. Therefore, the only remaining issues to be decided are

whether the substantial interests of Mr. Hasselback are affected

by the issuance of Permit GU-409, and if so, whether he timely

filed his Petition.

At the final hearing, Petitioner presented the testimony of

Richard R. Barnett, Sr., and Erik J. Olsen, a coastal engineer

and accepted as an expert. Also, he offered Petitioner's

Exhibits 4, 10, and 17. All were received except Exhibit 10, on

which a ruling was reserved. That exhibit is hereby received.

Respondents jointly presented the testimony of Petitioner and

Tony D. McNeal, Program Administrator for the Bureau of Beaches

and Coastal Systems. Also, the Department offered Department

Exhibits 4n and 4o, which were received in evidence.

(Department Exhibit 2, a copy of Mr. McNeal's resume, was marked

for identification but was never moved into evidence.) The

Wentzes offered Wentz Exhibits 1, 3, 6-9, 13, 17, 24, 25, 28,

31, 32, 34, 35, 36, 41, 42, and 44-46. All were received except

Exhibit 31. (Several of the Wentzes' exhibits were misnumbered

by counsel at hearing; they have been renumbered by the

undersigned to conform with the exhibit numbers used in the

parties' Stipulation.)

The Transcript of the hearing (two volumes) was filed on

November 23, 2009. By agreement of the parties, the time for

filing proposed findings of fact and conclusions of law was

extended to December 21, 2009. The same were timely filed and

have been considered in the preparation of this Recommended

Order.

Finally, on November 30, 2009, Petitioner filed a Motion

for Attorney's Fees, Costs and Expenses Pursuant to Sections

120.595(1) and 120.569(2)(e), Florida Statutes, directed against

the Department. On December 22, 2009, Petitioner filed a Motion

for Attorney's Fees Pursuant to Section 57.105, Florida

Statutes, also directed against the Department. A Response in

opposition to the two Motions was filed by the Department on

December 28, 2009. Those matters are discussed in the

Conclusions of Law.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

A. Background

1. This case is the latest chapter in a long-running

dispute between adjacent property owners in Gulf County. In

1984, the Cape Haven Townhomes (Cape Haven), consisting of five

two-story units on pilings, were constructed at 263 Haven Road

on Cape San Blas just west of County Road 30E. Petitioner

purchased his unit in 1985 and has owned it continuously since

that time. The remaining units were purchased by several other

individuals, including Barnett, Hosford, Steve Brady (Brady),

and Alison Dohrman, the daughter of Thomas Dohrman (Dohrman).

Ownership in the Barnett unit is shared with two other persons,

John Beranek (Beranek) and Stephen Hanlon (Hanlon). There are,

then, seven individuals having an ownership interest in the five

units. Although the complex faced the Gulf of Mexico to the

west, another lot, which at one time was approximately 350 feet

deep and 65 feet wide, lay between Cape Haven and the Gulf of

Mexico.

2. Between 1985 and 1999, the lot lying between the Gulf

of Mexico and Cape Haven remained vacant. In December 1999, the

Wentzes purchased the lot, which is located at 193 Haven Lane.

The lot is divided into Parcels A and B, which appear to be of

equal size with both facing the Gulf of Mexico. See Wentz

Exhibit 1. It can be inferred that they purchased the lot with

the intention of constructing a single-family dwelling on the

property.

3. In February 2000, the Wentzes filed an application

with the Department for a CCCL permit authorizing the

construction of a home on Parcel B. On July 9, 2002, the

Department issued proposed agency action approving the

application and issuing Permit No. GU-305. A petition was filed

by Barnett and Hanlon challenging this action, the matter was

referred to DOAH and assigned Case No. 02-3252, an evidentiary

hearing was conducted, and a Final Order was entered denying the

application. Barnett, et al. v. Wentz, et al. , DOAH Case No.

02-3252, 2003 Fla. ENV LEXIS 232 (DOAH June 5, 2003), adopted,

2003 Fla. ENV LEXIS 231 (DEP Aug. 4, 2003). In that proceeding,

Barnett and Hanlon were represented by the law firm then known

as Oertel, Hoffman, Fernandez & Cole, P.A., now known as Oertel,

Fernandez, Cole & Bryant, P.A. (the law firm).

4. In September 2000, the Wentzes also filed an

application for a field permit to enhance the dune system on

their property. After the Department proposed to grant Field

Permit 014292 authorizing the dune enhancement project, a

petition challenging that action was filed by the law firm on

behalf of Barnett, Dohrman, Hosford, Brady, Hanlon, Beranek, and

Hasselback. The matter was referred to DOAH and was assigned

Case No. 00-4460. Before a final hearing was conducted,

however, Petitioners filed a notice of voluntary dismissal.

5. In 2004, the Wentzes filed another application with the

Department for a CCCL permit, this time on Parcel A. On

September 8, 2004, the Department issued its notice of intent to

issue Permit GU-409. Notice of this action was not published.

Therefore, actual or constructive notice was required in order

to afford third parties, including Mr. Hasselback, a point of

entry. See Fla. Admin. Code R. 62-110.106(2)(receipt of notice

means "either receipt of written notice or publication of the

notice in a newspaper of general circulation in the county . . .

in which the activity is to take place").

6. Besides the law firm, Barnett, Dohrman, and several

others not relevant here received personal written notice of the

Department's action. Thereafter, acting pro se Barnett timely

requested at least six extensions of time to file a petition

challenging the proposed agency action. The last extension

lapsed on February 14, 2006, and neither Barnett nor any other

Cape Haven owner requested a hearing by that date.

7. In August 2005, the Wentzes filed an inverse

condemnation suit against the Department. See Wentz v. State,

Department of Environmental Protection , Case No. 05-270CA (14th

Cir., Gulf Co. Fla.). On April 10, 2006, the Department issued

a Final Order stating that it intended to revoke Permit GU-409

on the grounds the property was not platted prior to October 1,

1985, and shoreline changes had occurred after the proposed

agency action had been issued. See DOAH Case No. 06-2381.

Presumably, the latter reason was based on severe erosion of the

shoreline due to several storms or hurricanes that struck the

Florida Panhandle. According to testimony at hearing, due to

erosion caused by storm events, the lot has receded from its

original 350 feet in depth to around 175 feet at the present

time. (In Case No. 02-2352, the administrative law judge noted

that between 1993 and October 2002, around 47 percent of the

property's total depth, or 170 feet, had eroded. Barnett at

*11.) This in turn requires that any structure built on the

Wentzes' lot be much closer to Petitioner's unit. One witness

estimated that the Wentzes' septic tank, drain fields, and

driveway would be no more than 30 feet from the front of the

complex, while the pilings supporting the structure would be no

more than 40 feet from the complex.

8. The Wentzes challenged the proposed revocation of

Permit GU-409 and simultaneously filed a rule challenge. See

DOAH Case No. 06-2309RX. In August 2007, the Wentzes and

Department reached a global settlement on all pending matters,

and in return for the Wentzes' dismissing all pending court and

administrative actions and executing a conservation easement in

favor of the State as to one of the two parcels, the Department

agreed to issue a Notice to Proceed (NTP) with the construction

on Parcel A and to extend the expiration date on Permit GU-409

from September 8, 2007, to May 8, 2010. Except for the

extension of the expiration date, no other changes to Permit GU-

409 were made. An extension was necessary because the permit

would otherwise expire within a month, and no activity on the

property had occurred due to Barnett's six requests for

extension of time to file a petition and the passage of time

required to resolve the revocation case and reach a global

settlement. After the NTP was issued, concrete pilings were

placed on the site and still remain as of this date. According

to recent photographs, no other construction has occurred

pending the outcome of this case. See Petitioner's Exhibit 4.

9. In response to the Department's action, on October 10,

2007, the law firm filed a Petition on behalf of Barnett and

Hosford in which they claimed that they first learned of the

Department's latest action by reading a real estate listing in

early October 2007, which advertised the Wentzes' property for

sale, including a three-bedroom, three-bath home then under

construction. On October 19, 2007, the Wentzes filed with the

Department a Motion to Dismiss the request for a hearing as

being untimely. Barnett and Hosford were later dismissed from

the case on the grounds a new point of entry was not required by

the latest Department action, and they had waived their right to

contest the issuance of Permit GU-409 by (a) Hosford's failing

to timely file a petition after notice of the agency action was

issued on September 8, 2004, and (b) Barnett's failing to file a

petition after the last extension of time to do so expired in

February 2006. See Order Granting Motion to Dismiss , Jan. 25,

2008.

10. On or about October 23, 2007, or just after the Motion

to Dismiss had been filed by the Wentzes, Petitioner was

contacted first by Hosford and then Barnett, who asked that he

participate in the case to challenge Permit GU-409 since they

believed that "apparently . . . [he was] not noticed by DEP on

GU-409", and Petitioner was "the key for all of us maintaining

our rights." See Wentz Exhibit 23. Petitioner agreed to file a

petition since he thought it was in the best interests of all of

the unit owners and did so within a matter of "two or three

days." The Petition was prepared by the law firm and was filed

with the Department on October 26, 2007.

B. Substantial Interests

11. At hearing, and in pre-hearing discovery, Petitioner

testified that his substantial interests would be affected by

the proposed agency action in three ways: (a) it would

adversely affect his view of the Gulf of Mexico; (b) it would

negatively impact the value of his townhome; and (c) he feared

that wind or waterborne missiles from the structure during a

storm event would cause damage to his townhome, which lies

directly behind and to the east of the proposed construction

site. See Fla. Admin. Code R. 62B-33.005(4)(f)(an applicant

must show that "[t]he construction will minimize the potential

for wind and waterborne missiles during a storm"). 1 The latter

concern is the subject of the Wentzes' Motion in Limine briefly

discussed in the Background portion of this Recommended Order.

12. In addition to his testimony, on page 2 of the

parties' Stipulation, Petitioner identifies the following

concerns with the proposed agency action:

The project does not satisfy the

requirements or purpose of the statutes and

rules limiting coastal construction; will

diminish his observation and enjoyment of

flora and fauna including sea turtles; will

damage his property[;] and will have a

significant adverse impact to marine turtles

and the coastal system.

13. Finally, in paragraph 21 of the Petition, the

following allegation is made regarding the substantial interests

of Petitioner:

Should the permit be permitted, the

Petitioner will no longer be able to enjoy

the flora and fauna of Cape San Blas, the

proposed project will jeopardize the

Petitioner's continued enjoyment of his

property at this location as described

above, and the Petitioner's rights will be

swept aside.

14. The Wentzes argue that in demonstrating how his

substantial interests are affected, Petitioner is limited to the

reasons he gave during his testimony, both before and during the

final hearing, irrespective of any other issues identified in

his Petition or the parties' Stipulation. On the other hand,

through counsel, Petitioner argues that he is a lay person, he

cannot be expected to give opinion testimony in support of

technical allegations in the pleadings and Stipulation, and that

expert testimony may be used to establish how his substantial

interests may be affected.

15. A common thread in the testimony of Mr. Hasselback and

the Stipulation is a concern that the proposed activity "will

damage his property." See Stip., p. 2. Therefore, assuming

arguendo that the Wentzes' argument regarding the standing

issues that may be raised is correct, Petitioner is still

entitled to offer proof that his property may be damaged by the

proposed activity.

16. As to the other two concerns stated in Petitioner's

testimony, neither loss of view nor loss of economic value is a

relevant consideration. See , e.g. , Schoonover Children's Trust

v. Village at Blue Mountain Beach, LLC, et al. , Case No. 01-

0765, Recommended Order of Dismissal , April 20, 2001 (dismissing

challenge to CCCL permit based upon allegations of loss of view

and economic injury because "neither . . . is a protected

interest in a proceeding under Section 161.053, Florida

Statutes"). See also Young, et al. v. Department of

Environmental Protection, et al. , Case No. 04-3426, 2005 Fla.

ENV LEXIS 155 at *30 (DOAH Aug. 15, 2005), adopted, 2005 Fla.

ENV LEXIS 154 (DEP Sept. 26, 2005). Therefore, only the

contention that the issuance of a permit may cause wind or

waterborne missiles to strike or cause damage to his property

need be decided to resolve the standing issue.

17. Rule 62B-33.005(4)(f) requires that an applicant for a

CCCL permit demonstrate that "[t]he construction will minimize

the potential for wind and waterborne missiles during a storm."

Mr. Hasselback is concerned that if a dwelling is constructed in

front of his unit as proposed and no more than 40 feet away,

during a severe storm event parts of that structure may be

carried by wind or water into his unit. Although any dwelling

constructed on the coastline must be designed to withstand the

impact of a 100-year storm, a coastal engineer established that

even if the home is built to those standards, "substantial

structural elements" (such as sections of roofing material,

siding, stairways, and the like) may still be carried by water,

or blown by the wind, into Cape Haven, which lies directly

behind, and less than 40 feet from, the proposed structure. The

expert also pointed out that both the Department and Federal

Emergency Management Agency require that all frangible

structural components (those that tend to break up into

fragments) below the first living floor remain unattached to the

home. In this respect, the evidence supports a finding that

Mr. Hasselback could reasonably expect to be adversely impacted

in this manner should a permit be approved. 2

18. Petitioner's expert also established that the

existence of the pilings on the Wentz structure could accelerate

beach erosion and cause damage to the beach dune system on

Petitioner's property. Because of the extremely high rate of

erosion on Cape San Blas, he opined that such impact could occur

soon after the Wentz structure was completed. In this

additional respect, Petitioner's substantial interests could

reasonably be expected to be affected by the issuance of a

permit.

C. Was the Petition Timely Filed?

19. Mr. Hasselback is the Mary Ball Washington Eminent

Scholar in the College of Business, University of West Florida,

in Pensacola, but maintains a residence in Tallahassee. As

such, he must commute between the two cities each week during

the academic year. He also travels much of the other time.

Because of his schedule, he stated that he visits his unit only

"an average of once a year." The record shows that he

occasionally communicates by email or telephone with other unit

owners, particularly Barnett, who is considered the "leader" of

the unit owners in opposing any development on the Wentz

property. It is fair to infer that since the property was

purchased by the Wentzes in late 1999, most, if not all, of the

information derived by Petitioner (and other unit owners) about

the Wentz property, including any proposed activities they have

undertaken, has come from Barnett, rather than other sources.

20. Throughout this case, Mr. Hasselback has consistently

maintained that he was unaware that the Department proposed to

issue Permit GU-409 until he spoke by telephone with Barnett and

Hosford in late October 2007 after the Wentzes had filed a

Motion to Dismiss the Barnett/Hosford Petition. After the

Department denied the application for Permit GU-305 in August

2003, he says he assumed that the issue was closed and that no

further development would occur on the Wentzes' property. There

is no direct evidence to dispute these assertions.

21. Notwithstanding Mr. Hasselback's testimony, the

Wentzes and Department contend that the law firm has represented

the unit owners as a group since 2000, when the first two

applications were filed, and that this relationship was still in

effect in September 2004 when the law firm received notice of

the Department's proposed agency action regarding Permit GU-409.

They go on to contend that an agency relationship between the

unit owners and the law firm existed, that it is presumed to

continue in the absence of anything to show its revocation or

termination, that the law firm's receipt of separate written

notice concerning Permit GU-409 constituted constructive notice

on Petitioner, and a petition should have been filed within 21

days after receipt of notice. Conversely, Petitioner contends

that the attorney-client relationship between him and the law

firm ended when the litigation in Case No. 02-2352 was concluded

in August 2003, that the law firm did not represent him in

September 2004, and that any notice to the law firm regarding

the issuance of Permit GU-409 cannot be imputed to him. For the

following reasons, on two different bases, including one not

addressed by the parties, it is found that Petitioner received

constructive notice of the proposed issuance of Permit GU-409 on

or about September 15, 2004.

22. To resolve the contentions of the parties, a factual

review of the relationship between the law firm and Cape Haven

owners is necessary. As discussed in greater detail below, this

task is a difficult one because of the large number of unit

owners (seven), some of whom participated as parties in one

case, but not the others, and who are referred to by the law

firm in correspondence or other papers generically as "a group

of property owners, "adjacent property owners," or "other Cape

Haven Townhome owners," and in other papers by their specific

names. Although the law firm normally required that its clients

execute a letter of engagement before agreeing to represent

them, this policy was not strictly followed, and some unit

owners who had not signed a letter of engagement were named as

parties in a Wentz proceeding, while others who had signed a

letter were not. Finally, the record supports a finding that

throughout the nine-year controversy between the parties,

Barnett has been the individual who acted as liason between the

other unit owners and the law firm.

23. After the Wentzes filed their application for a CCCL

permit in February 2000, on August 4, 2000, Mr. Hasselback and

three other unit owners, Dohrman, Barnett, and Hosford, each

signed a letter of engagement with the law firm, also known as a

New Matter Report (Report), authorizing the firm to represent

them in the Wentz matter. See Wentz Exhibit 13. Petitioner

says he "most likely" learned about the proposed issuance of

Permit GU-305 through Barnett, who urged all of the unit owners

"to come together" in opposing the permit. Petitioner agrees

that all of the unit owners acted as a group "to fight the field

permit and the GU-305."

24. Even though Hasselback, Dohrman, and Hosford each

signed a Report, the Reports identified only Barnett, Hanlon,

and Beranek, who share ownership in unit 5, as the clients in

the matter; Barnett was listed as the contact person. However,

there is no evidence that Hanlon and Beranek ever signed a

Report. Presumably, as co-owners with Barnett of unit 5, they

had informally agreed with Barnett to be named as clients and to

reimburse him for their pro rata share of the costs. The

subject of the Reports was the "potential challenge of coastal

control permit" and contained no information as to when the

firm's services would cease.

25. On September 25, 2000, the Department proposed to

issue a field permit to the Wentzes for dune enhancement. See

Case No. 00-4460. On October 11, 2000, the law firm filed a

petition challenging the issuance of that permit. The petition

was filed on behalf of all seven unit owners, even though three

had never signed a Report. Although he probably discussed the

substance of the petition before it was filed, Mr. Hasselback

admits that he did not know the difference between a field

permit and a CCCL permit and said he signed his Report so that

the law firm could take "action against [the Wentzes] being able

to build on [their] property." On October 20, 2000, the law

firm also sent a letter to Department counsel requesting

Department counsel to remind the Wentzes that a petition had

been filed on behalf of its clients, that Permit 014292 was only

proposed action, and that the Wentzes should not proceed with

any work on the site. See Wentz Exhibit 3. The letter reflects

that all of the Cape Haven owners, including Petitioner, were

copied with that correspondence.

26. The law firm's representation of the unit owners as a

group at that time was confirmed by a letter sent to the

Department on October 1, 2001, stating that the firm represented

all of the Cape Haven owners, including Barnett, Dohrman, both

Hosford and his wife, Brady, Hanlon, Beranek, and Petitioner, in

their challenge to the Permit GU-305 application. It also

requested notice of any decisions regarding the permit and a

point of entry. See Wentz Exhibit 17. A copy of the letter was

sent to all unit owners, including Petitioner.

27. When the Department issued its formal proposed agency

action regarding Permit GU-305 on July 9, 2002, it sent separate

written notice to a member of the law firm on the same date.

See Wentz Composite Exhibit 8. A petition was then timely filed

by the law firm challenging that action. Notwithstanding the

firm's letter of October 1, 2001, which indicated that all of

the unit owners were opposing the issuance of a CCCL permit,

only Barnett and Hanlon (who had not signed a Report) were

identified as petitioners in the GU-305 case. Petitioner

acknowledged, however, that he and the owners of three other

units, but not Brady, agreed to share in the expenses of that

case even though they were not named as parties. In all, he

paid more than $35,000.00 in legal fees. 3 (Brady, who owns unit

3, did not sign a Report, and according to Petitioner, he would

not agree to share legal expenses in opposing the Wentzes'

applications; even so, his name was on the petition filed in

Case No. 00-4460.)

28. Before Case No. 02-3252 was concluded, by letter dated

January 15, 2003, the law firm, through a former member,

Patricia A. Renovitch, Esquire, made the following request to

Michael W. Sole, then Bureau Chief of the Department's Bureau of

Beaches and Wetland Resources:

Please consider this a request on behalf of

adjacent property owners for notices about

points of entry prior to the issuance of any

permits to, and notices of any applications

filed by, Doris and/or Daniel Wentz

regarding the coastal lots they own on Cape

San Blas that are described in File Numbers

GU-375 and GU-305 (DOAH Case No. 02-3252 and

OGC Case No. 02-1127). This would include

notices of any applications for coastal

construction control line permits or "dune

enhancement" permits for these lots.

(Emphasis added)

In this instance, the law firm identified the unit owners as

"adjacent property owners" without any further specificity. It

can be inferred, however, that the law firm was still

representing the entire group. At hearing, Petitioner

acknowledged that because Case No. 02-3252 was not yet

concluded, the law firm was still representing him when the

letter was sent. He also agreed that the letter authorized the

law firm to receive notices of "any applications" on behalf of

him and the other unit owners the Wentzes might file in the

future.

29. Petitioner says his relationship with the law firm

ended on August 4, 2003, when the Department issued a Final

Order denying the application for Permit GU-305. He

acknowledges that he never notified the Department or the law

firm that the relationship ended on that day, and he did not

instruct the law firm to revoke his prior authorization to

receive notices of "any applications" that might be filed by the

Wentzes in the future. Lacking any contrary information, the

law firm did not advise the Department that it no longer was his

agent for purposes of receiving notices.

30. In response to Ms. Renovitch's letter sent to the

Department in January 2003, on June 4, 2004, the Department sent

a letter to the law firm (and Barnett individually) advising

that the Wentzes had just filed another application for a CCCL

permit, that it was being assigned File Number GU-409, and that

any comments should be filed within ten days. See Department

Exhibit 4o. In response to the Department's letter, on June 15,

2004, Ms. Renovitch filed a letter with the Department

indicating in part as follows:

Please consider the following comments made

in behalf of our clients, Richard Barnett

and other Cape Haven townhome owners of

adjacent and/or upland property to the

property described in the above styled

application .

(Emphasis added)

The letter went on to state that "Mr. Barnett and other

similarly-situated upland/adjacent property owners of Cape Haven

townhomes submit their carefully considered objections to the

issuance . . . of GU-409." See Department Exhibit 4o. Based on

this correspondence, it can be inferred that in June 2004, at

least for purposes of receiving "notices of any applications"

filed by the Wentzes and submitting comments on behalf of the

unit owners, an apparent principal-agent relationship still

existed between the "other Cape Haven townhome owners" and the

law firm, and that Petitioner was one of the unit owners being

represented for those purposes. A copy of the letter was

provided to Barnett, who presumably approved its content.

31. On September 13, 2004, or five days after the

Department issued its proposed agency action to issue Permit GU-

409, the Department sent separate written notice of this action

to the law firm, Dohrman, Barnett, Erik J. Olsen (Olsen), a

coastal engineer in Jacksonville, Florida, who testified as a

consultant for Petitioner in this case, and several other

individuals not relevant here. See Wentz Composite Exhibit 8.

The notice was received by Barnett on September 15, 2004, and

presumably by the law firm on or about the same date. See

Department Exhibit 4n. (Besides the law firm, Barnett, Dohrman,

and Olsen were also given separate written notice since they had

each filed additional written objections in response to the

Department's letter of June 4, 2004.) Although Barnett promptly

contacted the law firm after receiving the notice to discuss the

case, there is no evidence that the law firm contacted or spoke

with any of the other unit owners regarding the proposed agency

action. More likely than not, this was because it assumed that,

based on the prior conduct of the parties, Barnett was the

leader or "contact" person for the group and would convey any

pertinent information to the other unit owners. While the law

firm had not yet agreed to represent any of the unit owners on

the merits of the GU-409 case since new Reports had not yet been

sent out, see Finding 32, infra , the law firm was still

Petitioner's agent for purposes of receiving notice of "any

applications," and its receipt of the Department's notice on or

about September 15, 2004, constituted constructive notice on

Petitioner.

32. On September 27, 2004, Ms. Renovitch emailed Kenneth

Oertel, Esquire, the senior partner in the law firm, regarding

the proposed agency action to issue Permit GU-409 and advised

him as follows:

Rick [Barnett] called a couple of times last

week about the GU-409 case. He and John

Beranek are in charge of overseeing the case

(assuming we take it). They have approved

the content of the Petition (per the memo I

sent early last week.)

I spoke to Rick Barnett several times about

the balance (approx. $10K) on the bill in

GU-305 (first Wentz CCCL permit). He said

it's owed by Tom Dohrman and he will try to

get a letter confirming when and how Tom

will pay the balance.

In the new case, the clients would be Rick,

John Beranek, Jim Hasselback, Laurie

Hosford, and Tom Dohrman. They will be

paying equal shares. We have the NMRs [New

Matter Reports] ready to send out, but have

not sent them due to the unpaid balance in

the first case.

Rick wants to meet with DEP counsel Mark

Miller and Tony McNeal about the GU-409 case

this week . . . . Tony is very busy with

hurricane impact emergencies . . . [and]

Mark suggested Rick file a request for an

extension to file the Petition.

(Emphasis added)

See Wentz Exhibit 9. Mr. Hasselback is not listed as a

recipient of the email and he never spoke with Barnett or

Ms. Renovitch about the case. He attributes the mentioning of

his name in the email and being named as a party in the proposed

petition to an assumption on the part of Barnett that "we may

still have a group." However, given the prior conduct of the

parties, it is reasonable to infer at a minimum that Barnett had

Petitioner's implied authority to instruct the law firm to

include his name on the proposed petition and to represent that

Petitioner would share in the costs of the action.

33. In response to that email, Mr. Oertel replied by email

the same date that "we can't take a case where the client

already owes us a substantial sum and has a hard time paying it.

It will mean at best we will get paid only 80% of our bill."

Id.

34. At the suggestion of Mark Miller (Department counsel),

Barnett requested that the Department grant him an extension of

time to file a petition in order not to waive the 21-day filing

requirement, which expired on October 6, 2004. The first

request for an extension of time was filed on September 27,

2004, and stated in part that "I request a two week extension to

October 20, 2004, for the homeowners of Cape Haven to consider

all issues that could be raised in filing a potential challenge

to this permit ." (Emphasis added) See Department Exhibit 4n.

The "homeowners" are not otherwise identified, although it is

fair to infer that they were the five unit owners identified in

the proposed petition whose content was approved by Barnett and

Beranek. According to Ms. Renovitch's email of September 27,

2004, by requesting an extension of time, this would also "give

[Barnett] more time to try to get Tom Dohrman to set up a

payment plan." The last request for an extension of time was

filed on November 14, 2005, and expired on February 14, 2006.

Barnett says that he "lost track of the time and didn't submit

[a seventh request] in time, but [he] clearly intended to submit

[one]". The end result was that the law firm did not accept the

case in September 2004, no petition was filed, and a new Report

was not executed by any unit owner.

35. After reading an advertisement regarding the potential

sale of the Wentz property in October 2007, Barnett and Hosford

engaged the services of the law firm to file a petition

challenging the action taken by the Department in August 2007.

There is no evidence that they signed a new Report authorizing

the law firm to represent them. As noted above, their petition

was later dismissed as being untimely. The law firm then filed

a petition on behalf of Petitioner, who agrees that it was filed

"to maintain the rights" of the group. However, he has not

signed a new Report for this case, he has not been billed for

any legal fees, he believes that Barnett is paying "some of the

cost," but he expects he will probably end up paying a part of

the legal fees incurred in this action.

36. Based upon the facts of this case, and the conduct of

the parties, the record also supports a finding that a

principal-agent relationship existed between Petitioner and

Barnett. As noted above, Barnett has always been the leader of

the group of unit owners in opposing any development on the

Wentz property. He communicated in writing and by telephone

with Department personnel on numerous occasions over the years

regarding the status of the activities on the property and

periodically relayed this information to other unit owners by

telephone or emails. Even though the law firm was given notice

on behalf of the unit owners, Barnett also requested separate

written notice from the Department for any applications filed

after the GU-305 case, including the GU-409 permit. Barnett was

initially identified by the law firm as the contact person for

the group and has regularly met or communicated with the law

firm regarding the various permits being challenged. It is fair

to infer that the law firm assumed that Barnett had the

authority to act on behalf of the other unit owners in

coordinating their opposition to any permit challenges. This is

evidenced by one of its emails indicating that Barnett was "in

charge of overseeing the [GU-409] case" and that he approved the

content of the proposed petition in which Mr. Hasselback was

named as one of the parties. Although no longer a party in this

case, he continues to discuss strategy of the case with counsel

and other unit owners, including Petitioner. Finally, since the

inception of these disputes, the record supports a finding that

the law firm has invoiced Barnett for its legal fees, and

Barnett then seeks reimbursement from the other owners,

including Petitioner. Therefore, it is reasonable to infer from

the evidence that because of his work schedule and travel, and

infrequent visits to his townhome, since 2000 Petitioner has, at

a minimum, impliedly authorized Barnett to serve as his agent to

advise him about any activities by the Wentzes that might

potentially impact the value of his townhome. The fact that

Barnett did not always timely convey the information, as was the

case here, does not negate this relationship. Because notice

was received by Petitioner's agent on September 15, 2004, the

time for filing a challenge to the issuance of Permit GU-409

expired 21 days after receipt of that written notice, or on

October 6, 2004. Assuming that Mr. Hasselback was one of the

"homeowners of Cape Haven" referred to in Barnett's first

request for an extension of time to file a petition on

September 27, 2004, and the subsequent five requests, the time

for filing a petition expired no later than February 14, 2006.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120.569 and

120.57(1), Florida Statutes. 4

38. If standing is challenged during an administrative

hearing, the petitioner must offer evidence to prove that its

substantial rights could reasonably be affected by the agency's

action. Palm Beach County Environmental Coalition, et al. v.

Fla. Department of Environmental Protection, et al. , 14 So. 3d

1076, 1078 (Fla. 4th DCA 2009). Further, Mr. Hasselback has the

burden of proving that his Petition was timely filed. These are

the only two issues that must be resolved in this proceeding.

39. The Wentzes contend that in proving that his

substantial interests are affected, Petitioner is limited to the

three reasons given in his testimony, and not the additional

reasons described in the parties' Stipulation or his Petition.

They cite no authority for this proposition, and the undersigned

has been unable to find any authority to impose such a

limitation. Accordingly, Petitioner may prove standing by

demonstrating that he "could reasonably" be affected in any way

described in his testimony, the parties' Stipulation, or his

Petition (assuming such injury is a protected interest under the

applicable statutes.) In this case, it is unnecessary to reach

the other reasons in the Stipulation or Petition since the

evidence establishes that Petitioner's property could reasonably

be subject to impacts from windborne or waterborne missiles from

the Wentzes' home if the permit is granted. Palm Beach County ,

supra .

40. Notwithstanding this evidence, in their pending Motion

in Limine, the Wentzes contend that even though the wind and

waterborne missile provision is still codified as a rule, it has

no force or effect due to the enactment of the Florida Building

Code in March 2002, and codified in Part IV, Chapter 553,

Florida Statutes. On this issue, the Department joins

Petitioner and argues that the rule is still effective and the

Department may consider the impacts from windborne or waterborne

missiles on adjacent properties. The Department's position is

supported by at least one reported administrative decision in

which compliance with the missile rule was a consideration in

determining whether to issue a CCCL permit for construction

activities to replace two dwellings damaged by a hurricane. See

Atlantis at Perdido Association, Inc., et al. v. Warner, et al. ,

DOAH Case No. 05-0035, 2005 Fla. ENV LEXIS 157 at *20-21 (DOAH

June 9, 2005), adopted, 2005 Fla. ENV LEXIS 156 (DEP July 25,

2005), rev'd on other grounds , 932 So. 2d 1206 (Fla. 1st DCA

2006).

41. In arguing that the Department no longer has

authority to regulate this type of impact, the Wentzes rely upon

Section 161.053(22), Florida Statutes, which provides in part as

follows:

In accordance with ss. 553.73 and 553.79,

and upon the effective date of the Florida

Building Code, the provisions of this

section which pertain to and govern the

design, construction, erection, alteration,

modification, repair, and demolition of

public and private buildings, structures,

and facilities shall be incorporated into

the Florida Building Code. The Florida

Building Commission shall have the authority

to adopt rules pursuant to ss. 120.536 and

120.54 in order to implement those

provisions.

42. However, the latter part of the same subsection

provides the following limitation on the Florida Building

Commission's authority:

This subsection does not limit or abrogate

the right and authority of the department to

require permits or to adopt and enforce

environmental standards, including but not

limited to, standards for ensuring the

protection of the beach-dune system,

proposed or existing structures, adjacent

properties, marine turtles, native salt-

resistant vegetation, endangered plant

communities, and the preservation of public

beach access .

(Emphasis added)

43. The Wentzes' argument must fail for the following

reasons. First, the cited statute only delegates enforcement of

the Florida Building Code and Department criteria to local

governments; it does not delegate any regulatory authority. By

its terms, the statute expressly does not "limit or abrogate the

right and authority of the department to adopt and enforce

environmental standards," including standards for ensuring the

protection of "existing structures" and "adjacent properties,"

such as Cape Haven. Among those standards is the provision in

Rule 62B-33.005(4)(f), requiring an applicant to minimize the

potential for wind or waterborne missiles during a storm.

Second, notwithstanding the delegation of certain enforcement

authority to the Florida Building Commission, the Legislature

left intact the other requirements that, when reviewing

applications for a CCCL permit, the Department must consider

potential impacts to adjacent structures (such as Cape Haven) as

a result of coastal construction. See §§ 161.053(1),

161.053(4), and 161.053(5)(a), Fla. Stat. Finally, unless or

until a promulgated rule is repealed or invalidated in a rule

challenge, the Department is required to enforce its own rules,

including the missile provision. See , e.g. , Marrero v.

Department of Professional Regulation , 622 So. 2d 1109, 1112

(Fla. 1st DCA 1993)("the [agency] is bound to comply with its

own rules until they have been repealed or otherwise invalidated

. . . ."). The Motion in Limine is accordingly denied.

44. Where notice of the Department's intent to issue a

permit is not published, as was the case here, the time period

for requesting a hearing on the permit does not commence until

actual or constructive notice of the permit is received. See

Fla. Admin. Code R. 62-110.106(2). See also Wentworth v. State,

Department of Environmental Protection, et al. , 771 So. 2d 1279,

1280 (Fla. 4th DCA 2000). As previously found, Mr. Hasselback

did not receive actual notice of the agency action until on or

about October 23, 2007, when Hosford and then Barnett spoke with

him about Permit GU-409. His petition was filed with the

Department three days later. Assuming there was no constructive

notice, the petition would be timely.

45. Here, however, the Wentzes and Department allege that

a principal-agency relationship existed between Petitioner (and

the other unit owners) and the law firm, by which Petitioner

received constructive notice on September 15, 2004. See , e.g. ,

Computel, Inc. v. Emery Air Freight Corporation , 919 F. 2d 678,

685 (11th Cir. 1990)("Florida case law acknowledges the

principle of agency law that knowledge of, or notice to an agent

or employee is imputed to the principal"). The existence of an

agency relationship is normally one for the trier of fact to

decide. See Orlando Executive Park, Inc. v. Robins , 433 So.

2d 491, 494 (Fla. 1983). The burden of proving the existence of

the relationship of principal and agent rests on Respondents,

who assert the existence of the relationship. See , e.g. , Pinon

v. International Harvester Company , 390 So. 2d 154 (Fla. 3d DCA

1980). In making this determination, an agency relationship may

be inferred from the facts of the case. See , e.g. , Thomkin

Corporation v. Miller , 24 So. 2d 48, 49 (Fla. 1945). Once

established, it follows that the burden of proving a revocation

of an agency rests upon the principal. See , e.g. , Wright Fruit

Co. v. Morrison , 309 So. 2d 54 (Fla. 2d DCA 1975)("an agency

relationship is presumed to continue in the absence of anything

to show its revocation or termination").

46. In resolving this unusual dispute, it bears repeating

that the history of the law firm's representation of Petitioner

and the other unit owners is ambiguous at best. As previously

found, however, the more persuasive evidence supports a

conclusion that the law firm served as Petitioner's agent for

purposes of receiving "notices of any applications" filed by the

Wentzes, including GU-409, that this relationship was never

effectively terminated, and that therefore Petitioner received

constructive notice of Permit GU-409 on or about September 15,

2004. See § 120.569(1), Fla. Stat. ("[u]nless waived, a copy of

the [proposed agency action] shall be delivered or mailed to

each party or the party's attorney of record at the address of

record"). This is true even if notice was not then conveyed by

the agent to the principal. By failing to timely file a

petition within 21 days after constructive notice, Petitioner

has waived his right to a hearing.

47. Petitioner argues, however, that his relationship with

the law firm ended when the litigation over Permit GU-305 was

concluded, and that this position is consistent with the

applicable law regarding when an attorney-client relationship

exists and when it is terminated. He cites Federal Insurance

Company v. Fatolitis , 478 So. 2d 106 (Fla. 2nd DCA 1985), for

the proposition that once litigation is concluded, the attorney-

client relationship ends. In that case, the court held that

"[g]enerally, service of papers on an attorney is permissible

only when the case is pending and not yet concluded." Id. at

109. See also Vol. 7A C.J.S. Attorney and Client § 264 ("on

fulfillment of the object of the retainer, the relationship or

employment ordinarily terminates and comes to an end and the

attorney's authority as the agent and representative ceases").

While the cited proposition is correct under the facts presented

in that case, here the attorney (agent) was specifically

authorized to continue to receive notices of "all [future]

applications" even though litigation in GU-305 was concluded. 4

This is not unusual in an administrative setting where

attorneys, engineers, planners, or other professionals are

frequently designated to receive a point of entry on behalf of

interested persons. Whether the attorney later accepts the case

is immaterial to the issue of whether the attorney had

authorization to receive notices of proposed agency action on

behalf of an affected person.

48. Even though the Permit GU-305 case ended in August

2003, there is no evidence that Petitioner notified the law firm

that he was revoking the authority described in the law firm's

letter of January 2003, which designated the firm to serve as

his agent for purposes of receiving notices of "any [future]

applications for [CCCL] permits." Indeed, a letter sent by the

law firm to the Department on June 15, 2004, reflects that the

law firm still assumed the relationship existed at that time.

This was followed by a proposed petition prepared by the law

firm in September 2004 that named Petitioner as a party in a

challenge to the new permit. Even though a new Report was never

signed after the Permit GU-305 dispute had ended, this omission

is immaterial since the law firm is now representing him without

one.

49. For the reasons previously found, the evidence

supports a conclusion that, at a minimum, Barnett had implied

authority from Petitioner to serve as his agent (and more likely

than not to serve as agent for the other unit owners) throughout

the course of this dispute for receipt of notices regarding any

activities on the Wentzes' property. Therefore, Barnett's

receipt of notice of agency action on September 15, 2004, can be

imputed to his principal, Mr. Hasselback. Because a petition

was not filed by October 6, 2004, or by February 14, 2006,

assuming that the requests for extension of time by Barnett to

file a petition were also on behalf of Petitioner, his Petition

is untimely and should be dismissed.

50. Based upon the facts previously found, it is concluded

that the Department did not participate in this case for an

improper purpose, as alleged by Petitioner. Therefore, his

request for attorney's fees under Section 120.595(1), Florida

Statutes, should be denied. The other requests for fees, costs,

and sanctions must be ruled upon by final order. Therefore, in

the event Petitioner becomes the prevailing party through final

agency action or by an appellate court ruling, he may renew his

requests within thirty days after the matter becomes final.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order dismissing, with prejudice, the Petition of

James Hasselback as being untimely.

DONE AND ENTERED this 28th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of January, 2010.

ENDNOTES

1/ In Case No. 02-3252, the administrative law judge found that

debris from a nearby home damaged various Cape Haven townhomes

as a result of Hurricane Opal striking the coast in 1996.

Barnett at *25.

2/ All referen ces are to the current version of the Florida

Administrative Code.

3/ It is highly unusual, if not extraordinary, that after

paying more than $35,000.00 in legal fees to contest the

issuance of Permit GU-305, during the next four years,

Petitioner did not make a single inquiry with any unit owner or

other person to learn if the Wentzes might again be proposing to

build a home on their property. It is fair to infer that

Petitioner assumed that if anything of importance occurred,

Barnett, as his agent, would relay this information to him.

4/ All references are to the 2009 version of the Florida

Statutes.

5/ The facts in Fatolitis are not similar to the facts present

here. In that case, after voluntarily dismissing Federal as a

party in an action to recover damages related to a construction

project, Fatolitis sought to withdraw his voluntary dismissal by

serving a motion to withdraw on Federal's former attorney, who

considered the litigation terminated as to Federal after the

voluntary dismissal was filed. The motion was granted by the

trial court and Federal was reinstated as a party. Through new

counsel, Federal then moved to dismiss any claims against it.

That request was denied by the trial court. On appeal, while

first expressing doubt as to the validity of a motion to

withdraw a voluntary dismissal, the appellate court reversed the

trial court's ruling and noted that the case was concluded as to

Federal when the voluntary dismissal was filed, and that

Fatolitis could not reacquire jurisdiction over Federal by

serving his motion on its former attorney.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303-6458

M. Drew Parker, Jr., Esquire

Ard, Shirley & Rudolph, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

Kelly L. Russell, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.