08-004359 St. Johns River Water Management District vs. Frank H. And Linda M. Molica Status: Closed Recommended Order on Monday, September 21, 2009.

Summary: Respondents dredged and filled in a wetland without a permit; activities did not qualify for an agricultural exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 08-4359EF

)

FRANK H. AND LINDA M. MOLICA, )

)

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 March 11, 12,

and 13, 2009, in Merritt Island and Rockledge, Florida.

APPEARANCES

For Petitioner: Vance W. Kidder, Esquire

St. Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429

For Respondents: Frank Henry Molica, Esquire

Frank Henry Molica, P.A.

231 North Courtenay Parkway

Merritt Island, Florida 32953-3407

Benjamin Y. Saxon, II, Esquire

Saxon & Chakhtoura, P.A.

111 South Scott Street

Melbourne, Florida 32901-1262

STATEMENT OF THE ISSUES

The issues are (1) whether Respondents, Frank H. and Linda

M. Molica, dredged and filled wetlands on their property in

Merritt Island, Brevard County (County), Florida, without a

permit and should take certain corrective actions, and (2)

whether Respondents' activities are exempt from permitting under

Section 373.406(2), Florida Statutes. 1

PRELIMINARY STATEMENT

On August 8, 2008, Petitioner, St. Johns River Water

Management District (District), filed an Administrative Complaint

and Proposed Order (Complaint) alleging that "[b]eginning in

2004," Respondents "undertook land clearing, dredging, and

filling in the wetland on [their] property without having a

current, valid permit from the District"; and that these

activities constituted "the construction and operation of a

surface water management system and are prohibited unless

authorized by a permit issued by the District." The Complaint

further described a series of corrective actions that must be

undertaken by Respondents, including the option of applying for

an after-the-fact permit or restoring the subject property to a

condition commensurate with the adjacent wetland system. By an

ore tenus motion at final hearing, on which a ruling was

reserved, the proposed corrective actions were slightly revised

and are reflected in District Exhibit 73. The motion is hereby

granted.

On August 25, 2008, Respondents filed their Petition for the

purpose of contesting the charges in the Complaint. The Petition

generally contended that Respondents were not required to obtain

a permit since their activities qualify for an agricultural

exemption under Section 373.406(2), Florida Statutes. The matter

was referred by the District to the Division of Administrative

Hearings on September 3, 2008, with a request that an

administrative law judge be assigned to conduct a hearing. On

September 25, 2008, Respondents filed an Amended Petition, which

sets out in greater detail the bases for their asserting that

they were entitled to an agricultural exemption.

By Notice of Hearing dated September 11, 2008, a final

hearing was scheduled on December 16 and 17, 2008, in Cocoa,

Florida. On December 1, 2008, Respondents filed an unopposed

Motion to Continue Hearing. The final hearing was then

rescheduled to March 11 and 12, 2009, in Merritt Island and

Rockledge, Florida, respectively. A continued hearing was

conducted on March 13, 2009, in Merritt Island, Florida.

Numerous procedural and discovery disputes arose during the

course of this proceeding and the rulings on those matters are

found in various orders issued in this case.

The parties filed separate Pre-Hearing Statements, as

revised, on March 4, 2009. In their filing, Respondents

specifically asserted for the first time that "there has been no

hardwood swamp or wetland on [the property] in the area where

Petitioner claims there to be." At the final hearing, the

District presented the testimony of Rita Strickland, who resides

near Respondents' property; Frank Henry Molica; Mark E. Crosby,

an Engineer III in the Department of Water Resources and accepted

as an expert; Elois S. Lindsey, a Regulatory Scientist II and

accepted as an expert; Travis C. Richardson, a Soil Scientist

with the Division of Environmental Resource Management and

accepted as an expert; Bryan West, an Environmental Specialist II

with the Department of Environmental Protection (DEP) and

accepted as an expert; Mykal Kwami Pinnick, a former Brevard

County biologist and accepted as an expert; and Lance D. Hart,

Manager of Technical Programs and accepted as an expert. Also,

it offered District Exhibits 1-6, 8-10, 12-15, 22, 45, 47-50, 52,

57, 62-67, and 73, which were received in evidence. Respondents

presented the testimony of Philip Molica, a professional land

surveyor and accepted as an expert; Richard Kern, a professional

engineer and accepted as an expert; Gregory J. Sawka, a soil

consultant and accepted as an expert; and Brooks Humphreys, an

agronomist and accepted as an expert. Also, they offered

Respondents' Exhibits 1, 2A and B, 3A-F, 4, 5A-K, 6, 7, 9, 10,

12A-C, 14, 16A-D, and 17-22. All were received except Exhibit 7,

the deposition of Richard Szpyrka, County Land Development

Engineer, upon which a ruling was reserved. The objection is

overruled and the exhibit is received. Finally, the undersigned

granted Motions for Official Recognition by both parties. 2

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

April 24, 2009. At hearing, the parties agreed that proposed

recommended orders would be due within thirty days after the

filing of the transcript. Proposed Orders were timely filed, and

they have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. Background

1. In 1990, Respondents purchased a 3.47-acre, rectangular-

shaped parcel at 2050 North Tropical Trail, Merritt Island,

Florida, which is located within the regulatory jurisdiction of

the District. See § 373.069, Fla. Stat. The parcel

identification number is 24-36-15-00-00764-00000.00. The

property is less than a mile south of State Road 528 (A1A),

approximately one-half mile west of State Road 3 (North Courtney

Parkway), and around one-half mile east of the Indian River.

2. The property is bounded on its western side by a roadway

known as North Tropical Trail, on the south side by a drainage

ditch, and on the east side by another drainage ditch. Further

to the east of the drainage ditch on the eastern side of the

property are a holding pond and a subdivision known as

Copperfield Subdivision developed in 1993, while a nursery is

located just south of the drainage ditch on the southern side.

The northern boundary of the parcel is five hundred twenty feet

long and is adjoined by a vacant parcel of land similar in size

to the Molica parcel and which is owned by the Lacanos. The

Lacano property is largely a wetland. To the north of the Lacano

property is a parcel owned by the Stricklands. Historically, the

natural flow of water in the area was north to south, that is,

from the Stricklands to the Lacanos to the Molica's property, and

then to the drainage ditch on the south side of the Molica's

property.

3. When Respondents purchased the property in 1990, citrus

trees were located "mostly in the front half," or western side of

the property, "but they were also located in the rear scattered

throughout." There was also "weed grass" or "mini grass"

throughout the entire parcel.

4. In 2002 or 2003, the citrus industry was economically

hurt by a drop in prices due to various problems, and it became

difficult to find fruit pickers or purchasers for the fruit.

Because of these conditions, and pursuant to a recommendation by

another citrus grower, Respondents state that they began to

"transform their property to palm tree production."

5. In late 2003, Respondents began removing orange trees

and clearing the land; this continued throughout 2004. At the

same time, they began to remove vegetation from the eastern half

of the property, which included the excavation of the vegetation,

soil, and roots. This was accomplished by the use of heavy

equipment, including a tracked cab with hoe, a bobcat with front

end loader bucket and root rake, and a wheeled tractor with front

end root rake. This is confirmed by photographs taken of the

property in April and December 2004. See District Exhibits 8

through 10. Also, a few cabbage palms were removed that were

damaged during the clearing process, as well as trees damaged by

hurricanes that struck the east coast of Florida in 2004. The

vegetation and soil were trucked off-site for disposal, and new

soil or fill was placed throughout the eastern half of the

property in which vegetation and soil had been excavated. In

some cases, the fill measured as high as thirty-three inches but

averaged around one foot in height. There is no dispute that

dredging (or excavation) and filling on the property occurred.

Respondents did not obtain an Environmental Resource Permit (ERP)

before performing this work.

6. On December 13, 2004, the County received a complaint

(generated by Mrs. Strickland, the neighbor to the north) about

"heavy machinery operating in a wetland" on the Molica property.

Mr. Pinnick, who was charged with enforcement of County

environmental ordinances, visited the subject property to

determine whether a violation of an ordinance had occurred. He

observed heavy machinery operating on the central and eastern

sides of the property and took several photographs of the site.

See District Exhibit 12. He also observed vegetation and muck

soil in the disturbed area and standing water in the ditch to the

south and concluded that wetlands were being impacted. It is

fair to infer that he then notified the DEP about the incident.

7. On December 15, 2004, Mr. Pinnick, accompanied by two

DEP employees, Mr. West and his supervisor, Ms. Booker, visited

the site and met Mr. Molica and his consultant. At that time,

"clearing and [dredging and filling] of wetland at rear [or east

end] of Molica's property [was observed]." See District Exhibit

49. The DEP requested that Respondents' consultant "flag a

[wetland] line and then Molica have all fill within wetland area

removed." The DEP also advised Mr. Molica that "[a]rea then

needs to be restored to natural grade." Id. Notes taken by

Mr. Pinnick confirm that Mr. Molica agreed to remove the fill "to

restore the natural grade and the wetland boundary would be

delineated [by Mr. Molica's consultant.]" See District Exhibit

52. The conclusion of both the County and DEP was that wetlands

were present in the central part of the property. No formal

delineation of wetlands was performed by them since the parties

reached an understanding that Mr. Molica's consultant would

perform this task. Because Mr. Molica thereafter denied access

to the property, this would be the last time regulatory personnel

were able to make an on-site inspection of the property until

October 2008, when the District obtained an Order authorizing

them to inspect the property.

8. The County later charged Respondents with violating the

County Code ("prohibitions in functional wetlands"), and the

matter was considered by a Special Magistrate. An Order of

Dismissal was entered by the Special Magistrate on February 1,

2006, on the grounds the property was zoned agriculture and

enjoyed an agricultural exemption, and Respondents agreed to use

Best Management Practices, as prescribed by the Department of

Agriculture and Consumer Affairs. See Respondents' Exhibit 4.

However, neither the DEP nor the District was involved in that

action, and the matter concerned an alleged violation of a local

ordinance, and not a provision in Chapters 373 or 403, Florida

Statutes.

9. At some point in time, but presumably after the site

visit in December 2004, Mr. Molica asserted to the DEP that he

was conducting an agricultural operation. In early 2005, the DEP

referred the matter to the District since the two agencies have

an operating agreement concerning which agency will handle

certain types of permitting and enforcement matters. By letter

dated August 15, 2005, Mr. Molica advised the local District

office in Palm Bay, Florida, that the owners of the property were

engaging in agricultural activities and denied that any

unauthorized fill and excavation activities had occurred. He

also requested copies of any statutes, rules, or case law that

supported the District's position. See Respondents' Exhibit 2A.

On August 3, 2007, the District advised Mr. Molica by letter that

it had received a complaint from DEP, that the matter had not yet

been resolved, and that it wished to inspect his property to

determine if unauthorized fill and excavation activities had

occurred. See Respondents' Exhibit 2B. According to a District

witness, the delay in responding to Mr. Molica's letter was

caused by the building boom occurring in 2005 and 2006, which

required action on numerous pending permits, and in-house

confusion over whether the DEP or District had jurisdiction to

handle the complaint. There is no evidence to suggest that at

any time the District agreed that the activities were lawful, or

that the delay in responding to Mr. Molica's letter prejudiced

Respondents in any manner.

10. After conducting a preliminary investigation, which

included a review of aerial photographs of the area, wetland

maps, and soil maps, a visual inspection taken from the

Copperfield Subdivision to the east and North Tropical Trail from

the west, and a flyover of the property, the District issued its

Complaint on August 8, 2008.

B. Are there wetlands on the property ?

11. To determine whether wetlands were present on the

Molica property, the District made a site inspection on

October 22, 28, 29, and 30, 2008. Besides making a visual

inspection of the property, the staff took photographs, performed

twenty-nine soil borings on both the Molica and Lacano

properties, reviewed soil surveys for the area, completed one

west-to-east transect and five north-to-south transects to

determine locations of hydric soils and any fill materials, and

observed lichen and water stain lines on trees. The locations of

the various soil borings are depicted on District Exhibit 22.

Finally, the staff examined a series of aerial photographs of the

property.

12. Under the wetland delineation rule, three different

indicators are used to make that determination: vegetation;

soils; and signs of hydrology. See Fla. Admin. Code R. 62-

340.300(2)(a)-(d). In addition, where the vegetation and soil

have been altered by man-induced factors so that the boundary

between the uplands and wetlands cannot be delineated by use of

Rule 62-340.300(2), such a determination shall be made by using

the most reliable information and "reasonable scientific

judgment." See Fla. Admin. Code R. 62-340.300(3)(a). The

parties presented conflicting evidence on the wetland issue; the

District's evidence has been accepted as being the more

persuasive and credible and supports a finding that the areas

where dredging and filling occurred in the eastern and central

parts of the property meet the test for a wetland.

a. Wetland Soils

13. Muck presence is a hydric soil indicator and also a

wetland indicator. The District's expert, Mr. Richardson,

established that the soil on the property where the dredging and

filling occurred was hydric in nature, and therefore indicative

of a wetland. Although Respondent's soil expert disagreed with

this conclusion, he generally agreed with Mr. Richardson's

methodology, and he agreed that muck was present below the fill

material.

b. Wetland Vegetation

14. The presence or absence of wetland vegetation is

another factor to consider in deciding whether an area is or was

a wetland. Wetland hardwood trees, and not grass planted on top

of the fill, are more appropriate for evaluating whether the area

in which the trees are located was a wetland. Large trees,

estimated to be fifty to sixty years old, remain on the property

in the vicinity of certain District soil borings. They include

boring 20 (swamp tupelo); borings 3, 4, and 5 (red maple,

American elm, and holly); and borings 9 and 10 (maple and

American elm). These are all wetland canopy species and provide

further support for the District's position.

c. Hydrologic Indicators

15. Algal matting is found on the surface of the property

in the vicinity of borings 3, 4, 5, 8, and 9. Algal matting

occurs because water has inundated the surface of the ground

sufficiently long for algae to grow in the water and then remains

on the ground surface after the water no longer covers the

ground. Rainfall alone does not produce algal mats.

ees on the property provided evidence of being in

saturated or inundated soil conditions through the morphological

adaptation of buttressing and adventitious roots, particularly in

the vicinity of District borings 20, 8, 9, and 10. Also, the

trees had lichen lines on them, which are indicators of seasonal

high water inundation elevations in wetlands.

17. The presence of muck soils is a hydrologic indicator.

As noted above, the District determined through soil borings that

muck was under the fill that had been placed on the property.

d. Reasonable Scientific Judgment

18. The evidence established that there was significant

alteration to the soils and vegetation across the central and

eastern parts of the subject property due to man-induced factors

of vegetation removal, dredging, and filling. Through

consideration of the most reliable information available,

including aerial photographs, the remaining trees on the site,

hydrologic indicators, the presence of hydric soils, coupled with

reasonable scientific judgment, the evidence established that the

areas where the recent dredging and filling occurred met the

wetland delineation test in Florida Administrative Code Rule 62-

340.300(3).

C. Agricultural Exemption

19. Mr. Molica is a full-time practicing attorney. His

wife is his legal secretary. Respondents contend that since they

purchased the property in 1990, they have been continuously

engaged first in the occupation of citrus farming, and then

beginning sometime in 2004 in the production of palm trees.

Therefore, they assert they are entitled to the exemption

provided under Section 373.406(2), Florida Statutes. That

provision states in relevant part that "[n]othing herein . . .

shall be construed to affect the right of any person engaged in

the occupation of . . . horticulture . . . to alter the

topography of any tract of land consistent with the practice of

such occupation. However, such alteration may not be for the

sole or predominant purpose of impounding or obstructing surface

waters." The parties agree that the burden of proving

entitlement to this exemption rests on Respondents.

20. When the property was purchased in 1990, there were

citrus trees on the land, mainly in the western half. A few

navel oranges were later added, and some citrus trees were

removed at that time. Beginning at the end of 2003, and

continuing in 2004, the citrus trees were removed. At the time

of the DEP inspection in December 2004, no potted palm trees were

observed on the property. The precise date when they were first

placed on the property is not clear. Photographs taken in

January 2006, more than a year after the dredging and filling and

just before the County code violation charge was resolved,

reflect around fifty or so small trees in pots located in a

small, cleared section of the property. See Respondents' Exhibit

18. Photographs taken three years later (January 2009), long

after the dredging and filling occurred, show a comparable number

of small palm trees in pots placed on what appears to be the same

part of the property. See Respondents' Exhibit 21. Mr. Molica

also submitted numerous documents (dated 2005 and later)

downloaded from the internet by his wife which pertain to palm

trees, see Respondents' Exhibit 20; and he stated that a

marketing plan for the sale of palm trees has been developed,

which was simply a goal of selling the trees after they were ten

years old. He further stated that he intends to work the "farm"

as a business full-time after retiring from his law practice.

Finally, he presented the testimony of an agronomist who stated

that clearing property, filling holes, smoothing land, and

building an access road are normal agriculture activities.

21. It is fair to infer from the record that Respondents'

activities can be characterized as an avocation, not an

occupation. Notably, there is no evidence that since they

purchased the property in 1990, Respondents have sold any citrus

fruit or a single palm tree.

22. There is no evidence that dredging and filling in

wetlands is a normal agriculture practice, or that it is

consistent with the practice of horticulture, including the

growing of exotic palm trees. Mr. Molica's agronomist

acknowledged that he has never been associated with an

application to conduct agricultural or horticultural activities

that involve the filling of wetlands. Moreover, extensive

dredging, filling, and removal of vegetation were not necessary

to accommodate the small area on which the potted plants sit.

The more persuasive evidence supports a finding that the

topographic alterations on the property are not consistent with

the practice of agriculture.

23. The evidence shows that the filling on the property has

obstructed the natural flow of surface water. More than likely,

the filling of the wetlands was for the predominant purpose of

obstructing and diverting surface water that flowed south from

the Lacano property, and not for the purpose of enhancing

horticultural productivity.

D. Corrective Actions

24. At hearing, the District submitted certain revisions to

the proposed corrective action, which are described in District

Exhibit 73. The revisions provide greater specificity regarding

the formulation of a restoration plan and who must be involved in

formulating that plan. In general terms, the corrective action

offers Respondents the option of seeking an after-the-fact permit

or restoring the wetlands. Respondents offered no proof at

hearing that the original or revised corrective action is

unreasonable. The revised corrective action is found to be

reasonable and designed to address the restoration needs of the

property and is hereby approved.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

26. Section 373.119(1), Florida Statutes, authorizes the

District to issue a complaint when it has reason to believe that

a violation of any provision of Chapter 373, Florida Statutes, or

a District rule has occurred.

27. Florida Administrative Code Rule 40C-4.041(2)(b)8.

requires that an ERP be obtained "prior to the construction . . .

[or] operation of a surface water management system which . . .

is wholly or partially located in, on, or over any wetland." The

term "construction" is defined in Florida Administrative Code

Rule 40C-4.021(7) to mean "any activity including land clearing

[or] earth moving . . . which will result in the creation of a

system." The term "operation" means "to cause or to allow a

system to function." See § 2.0(11), Applicant's Handbook.

Florida Administrative Code Rule 40C-4.021(27) defines the terms

"surface water management system" or "system" to include areas of

dredging and filling wetlands. Therefore, if the area in which

Respondents dredged and filled was a wetland, this activity

constituted the construction and operation of a surface water

management system requiring an ERP.

28. For the reasons previously found, the more credible and

persuasive evidence supports a conclusion that Respondents

dredged and filled wetlands on their property without first

obtaining an ERP. Therefore, the charge in the Complaint has

been sustained.

29. Respondents claim they are entitled to an agricultural

exemption under Section 373.406(2), Florida Statutes. An

exemption is strictly and narrowly construed against the person

claiming the exemption. See , e.g. , Pal-Mar Water Management

District v. Board of County Commissioners of Martin County, et

al. , 384 So. 2d 232, 233 (Fla. 4th DCA 1980). Under the statute,

three issues must be evaluated in order to determine if an

activity qualifies for an exemption. First, Respondents must be

engaged in the occupation of agriculture or horticulture.

Second, the topographic alteration must be consistent with the

practice of agriculture. Finally, the alteration must not be for

the sole or predominant purpose of impounding or obstructing

surface waters.

30. The more persuasive evidence supports a conclusion that

Respondents are not engaged in the occupation of palm tree

production; that the topographic alterations are not consistent

with the practice of agriculture; and that the alterations on the

property were for the sole or predominant purpose of impounding

or obstructing surface waters. Therefore, they are not entitled

to an exemption.

31. Finally, Respondents cite the recent case of A. Duda

and Sons, Inc. v. St. Johns River Water Management District , 34

Fla. L. Weekly D972 (5th DCA, May 15, 2009), for the proposition

that if the predominant effect of their agricultural activity has

a purpose consistent with the practice of agriculture, then the

activity is exempt from the District's permitting requirements

even if that activity has more than an incidental effect of

impounding or obstructing surface waters. As previously found,

however, the predominant purpose of the dredging and filling was

not to enhance agricultural or horticultural productivity, but

rather to obstruct the surface water runoff from the upgradient

properties. Given this factual record, the Duda case does not

mandate a different result.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered sustaining the

charges in the Complaint, requiring Respondents to take the

corrective actions described in District Exhibit 73, and

determining that Respondents are not entitled to an agricultural

exemption under Section 373.406(2), Florida Statutes.

DONE AND RECOMMENDED this 12th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of June, 2009.

ENDNOTES

1/ All statutory references are to the 2008 version of the

Florida Statutes.

2/ The officially recognized matters include Chapters 373 and

403, Florida Statutes (2007); Florida Administrative Code Rule

Chapters 40C-4, 62-345, and 62-340; St Johns River Water

Management District Applicant's Handbook for Management and

Storage of Surface Waters (May 13, 2008), Sections 1-1 through 3-

15, 7-1 through 7.6, 8.1 through 10.8, and 12.1 through 12.58;

Delegation of Authority from the Florida Department of

Environmental Protection; Conference Committee Report on CS/CS/HB

1187, Journal of the Florida House of Representatives, May 29,

1984, page 734 and Journal of the Florida Senate, May 28, 1984,

page 475; Model Water Code Commentary for Chapter 4 and Sections

4.01 through 4.04; Chapter 93-213, Laws of Florida, pages 2129-33,

2137, 2143-54, and 2157; Part VIII, Chapter 403, Florida Statutes

(1991), pages 1718-1724; Florida Administrative Code Rule 5E-

1.023; the fact that Part IV, Chapter 373, Florida Statutes, is

based on the Model Water Code; the Applicant's Handbook:

Agricultural Surface Water Management Systems, December 3, 2006;

and "the official seal of the Brevard County Property Appraiser, a

governmental agency, together with the photographs upon which such

seal is embossed."

COPIES FURNISHED:

Kirby B. Green, III

Executive Director

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177-2529

Vance W. Kidder, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177-2529

Frank Henry Molica, Esquire

Frank Henry Molica, P.A.

231 North Courtenay Parkway

Merritt Island, Florida 32953-3407

Benjamin Y. Saxon, II, Esquire

Saxon & Chakhtoura, P.A.

111 South Scott Street

Melbourne, Florida 32901-1262

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.