10-006553 Board Of Trustees Of The Internal Improvement Trust Fund Of The State Of Florida vs. James R. Therrien Status: Closed Recommended Order on Wednesday, November 3, 2010.

Summary: SSL lease expired but dock not removed for two years. Recommended: $2,000 fine; and either remove dock or renew lease and pay back fees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF TRUSTEES OF THE )

INTERNAL IMPROVEMENT TRUST FUND )

OF THE STATE OF FLORIDA , )

)

Petitioner , )

)

vs. ) Case No. 10 - 6553

)

JAMES R. THERRIEN , )

)

Respondent . )

)

RECOMMENDED ORDER

On October 7, 2010, a video hearing was held in this case

with video sites in Daytona Beach and Tallahassee, Florida,

before J. Lawrence Johnston, Administrative Law Judge (ALJ),

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Christopher Thomas Byrd, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 30 00

For Respondent: James R. Therrien, pro se

237 North Halifax Avenue

Daytona Beach, Florida 32114 - 4121

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Trustees of

the Internal Improvement Trust Fund (BOT) should charge

Respondent with lease payments and fine him for unauthorized use

of sovereignty submerged lands under the Halifax River in

Daytona Beach.

P RELIMINARY STATEMENT

BOT served Respondent with a Notice of Violation (NOV), and

Respondent requested an administrative hearing. The matter was

referred to DOAH to be assigned to an ALJ to conduct the

hearing, which was scheduled to take place by video co nference.

While at DOAH, BOT was granted leave to file its First Amended

NOV , Orders for Corrective Action, and Administrative Fine

Assessment (First Amended NOV) .

At the final hearing, BOT called one witness,

Aaron Watkins, an Environmental Manager wit h the Department of

Environmental Protection (DEP), and had BOT Exhibits 1 - 7

admitted in evidence. Respondent testified in his own behalf

and had RespondentÓs E xhibits 1 - 18 admitted in evidence. 1

Respondent indicated that he was going to arrange for the filing

of a transcript of the final hearing but did not do so.

Respondent declined to file a proposed recommended order (PRO).

BOTÓs PRO has been considered.

FINDINGS OF FACT

1. Respondent owns residential property on the Halifax

River in Daytona Beach.

2. In 2004, he entered into a Sovereignty Submerged Lands

Lease with BOT to allow him to construct a single - family dock

structure into the Halifax River from his property. In 2007, he

entered into a Modification to Increase Square Footage (Modified

Lease). The Modified Lease covered 2,714 square feet, required

an annual lease fee of $423.89, and expired on November 16,

2008.

3. The Modified Lease provided for a late charge equal to

interest at the rate of 12 percent per annum from the due date

until paid on any lease fees not paid within 30 days from their

due dates. There was no evidence that any lease fee under the

Modified Lease was not paid or paid late.

4. In August 2008, BOT attempted to have Respondent enter

into a Lease Renewal. He did not renew his lease, and the

Modified Lease expired on November 16, 2008. Respondent paid no

lease fees for 2008/2009.

5. In September 2009, BOT again attempted to have

Respondent enter into an updated Lease Renewal at an annual

lease fee of $436.78 and pay current and past due lease fees.

BOT placed Respondent on notice that his failure to do so could

be considered a willful violation of Chapter 253, Florida

Statutes, which could subject Respondent to administrative fines

of up to $10,000 a day.

6. Respondent did not re new his lease or pay any lease

fees. Instead, he complained (as he claims to have since 2005)

that a stormwater outfall structure installed by the Florida

Department of Transportation (DOT) in 1998 approximately 100

feet to the north (upriver) of his dock structure, at the end of

Ora Street, was not functioning properly and was allowing silt

to enter the river, shoaling the water in the area of

RespondentÓs dock structure (and elsewhere in the vicinity) and

eventually making it impossible for Respondent to moor his boat

at his dock structure and navigate to the Intracoastal Waterway

(ICW).

7. The DOT outfall structure at Ora Street has been in

existence since the 1950Ós. In 1998, DOT added a silt box,

which is not functioning properly and is allowing silt t o enter

the river. The evidence is not clear whether silt from the DOT

outfall structure was entering the river before 1998.

8. I n 2010, BOT informed Respondent by certified mail that

it had contacted the DOT at RespondentÓs request and determined

that DOT was planning to clean and monitor the outfall structure

after August 2010 but had no plans to dredge sediment from the

river. BOT also placed Respondent on notice that he was in

violation for not renewing his lease and paying all current and

past due fee s, and that he would be fined and required to remove

his dock structure if he did not come into compliance. This

certified letter was designated an NOV. The evidence was not

clear when the letter was sent to Respondent , but it is clear

that Respondent ha s continued to refuse to renew the lease, or

pay any fees, and has not removed his dock structure .

9. BOT takes the position in this case that Respondent

must pay: the Lease Renewal annual lease fee of $436.78 for

2008/2009, plus the Lease Renewal late cha rge equal to interest

at the rate of 12 percent per annum from November 30, 2010; and

an annual lease fee of $448.49 for 2009/2010, plus a late charge

equal to interest at the rate of 12 percent per annum on the

$448.49 from November 29, 2009. The evidenc e did not explain

how the annual lease fees for the years 2008/2009 and 2009/2010

were determined. ( But see Florida Administrative Code Rule 2 18 -

21.011(1)(b)10.b., set out in Conclusion of Law 24, which may

explain how the annual lease fees were determine d.) Invoices in

evidence charge Respondent a total of $1,283.22 through July 30,

2010: $436.78, plus tax, for a total of $465.17 for the year

2008/2009; $448.49, plus tax for a total of $477.64 for the year

2009/2010; and $36.18 of interest on the $448.4 9.

10. BOT also takes the position that Respondent must

either: enter into a lease for the year 2010/2011 and beyond;

remove part of his dock structure so that he will preempt only

1,150 square feet of sovereignty submerged land (so as not to

require a lea se, but only a cost - free consent of use); or remove

the entire dock structure.

11. BOT also seeks the imposition of an administrative

fine under Rules 18 - 14.002 and 18 - 14.005(5) . In its First

Amended NOV, BOT sought a fine in the amount of $2,500; in its

P RO, BOT seeks a fine in the amount of $2,500 for the first

offense and $10,000 per day from the issuance of the NOV for

repeat offenses.

12. Respondent believes he should not be required to pay

any lease fees or fines because of his inability to use his doc k

structure due to the shoaling of the river caused by the

malfunctioning DOT outfall structure.

13. Respondent believes it is DEPÓs responsibility to

require DOT to remove the silt from the river and make the

outfall structure work properly. He believes t his is required

by the state and federal constitutions, statutes, and rules, and

by an unspecified Ðfederal bond issueÑ or Ðfederal bond agency.Ñ

14. DEP takes the position that the silting from the

outfall structure and its adverse impact on RespondentÓs a bility

to use his dock structure is irrelevant because the requirement

of a lease is based on preemption of sovereignty submerged land,

not on the lesseeÓs use of the land. DEP also believes that,

under an operating agreement among governmental agencies, the

St. Johns River Water Management District (SJRWMD), not DEP, is

the agency responsible for enforcing the applicable

environmental laws and permit conditions against DOT. DOT has

indicated to the parties that it is in the process of modifying

the outfa ll structure so that it functions properly but that it

does not have the money to remove silt from the river.

15. DEP personnel visited the site at approximately

11 :00 a.m. on July 16, 2010, and measured the water in the

vicinity of the terminal platform and slips of RespondentÓs dock

structure to be approximately 36 inches deep, which is deep

enough for navigation.

16. DEP did not take measurements in the slips of the d ock

structure, between the terminal platform and RespondentÓs

property, or between the vicinity of the terminal platform and

the ICW.

17. The evidence was not clear what the tide stage was at

the RespondentÓs dock structure when DEP measured the water

depth . DEP called the tide stage low, or near low, based in

part on tidal charts for Ormond Beach and the Halifax River

indicating that the tide was low at 11:21 a.m. and high at

4:10 p.m. on July 16, 2010. However, the persuasive evidence

was that the tidal chart applied to locations at the beach, and

there is a difference in the tides at RespondentÓs dock

structure and at the beach. It does not appear that the tide

was dead low or near dead low at RespondentÓs dock structure at

11 :00 a.m. on July 16, 2010; it probably was between low and

slack, possibly a half foot higher than dead low.

18. Regardless of the measurements taken by DEP on

July 16, 2010, Respondent testified that he is no t able to

operate his boat from his dock structure consistently due to

shoa ling from the silt. He testified that, as a result, he kept

his boat at a marina for a year at a cost of $7,000 but cannot

afford to continue to do so .

CONCLUSIONS OF LAW

19. Section 253.04(1), Florida Statutes, 3 authorizes BOT to

sue for ejectment, damage s, or trespass to prevent unauthorized

use of state land. Section 253.04(2), Florida Statutes,

provides:

In lieu of seeking monetary damages pursuant

to subsection (1) against any person or the

agent of any person who has been found to

have willfully da maged lands of the state,

the ownership or boundaries of which have

been established by the state, to have

willfully damaged or removed products

thereof in violation of state or federal

law, to have knowingly refused to comply

with or willfully violated th e provisions of

this chapter, or to have failed to comply

with an order of the board to remove or

alter any structure or vessel that is not in

compliance with applicable rules or with

conditions of authorization to locate such a

structure or vessel on stat e - owned land, the

board may impose a fine for each offense in

an amount up to $10,000 to be fixed by rule

and imposed and collected by the board in

accordance with the provisions of chapter

120. Each day during any portion of which

such violation occurs c onstitutes a separate

offense.

20. Under Rule 18 - 21.005(1)(d), a lease is required for

RespondentÓs dock structure because it is too large for a

consent of use under paragraph (c) of that Rule.

21. Under Rule 18 - 21.008(1)(b)5.:

Upon expiration or cancellat ion of a lease,

the former lessee shall remove all

structures and equipment from the leased

area in accordance with the terms and

conditions of the lease or as ordered under

Section 253.04(2), F.S. In the event that

the former lessee fails to remove all

s tructures and equipment, the Board shall

issue an order requiring the former lessee

to remove the structures and equipment from

the leased area. If the former lessee fails

to comply with such an order, the Board

shall:

a. Impose a fine under Section

253.04(2), F.S., and subsection

18 - 14.002(2), F.A.C.; and

b. Remove the structures and

equipment and recover the cost of

removal from the former lessee

under Sections 253.04(1) and (5),

F.S. and Chapter 18 - 14, F.A.C.

Failure to pay a fine imposed under sub -

subparagraph 6.a., shall result in the

imposition of a statutory lien in accordance

with Section 253.04(6), F.S., and Chapter

18 - 14, F.A.C.

This Rule does not authorize BOT to charge lease payments after

expiration of a lease, but it does authorize th e imposition of a

fine on Respondent for not complying with BOTÓs order to remove

his dock structure.

22. Rule 18 - 14.002 provides:

(1) A person or agent of a person who

willfully damages state land, willfully

damages or removes products from state land

i n violation of state or federal law, or

knowingly refuses to comply with or

willfully violates the provisions of Chapter

253, F.S., shall also be in violation of

this rule and shall incur a fine up to

$10,000 per offense.

(2) When determining the amount of a fine

to be imposed, the Board shall consider:

(a) The value of products removed

from state land;

(b) The diminished value of state

land or products, or the cost of

restoring the affected state land

or products;

(c) Lost revenue from impaired

use of the affected state land;

(d) The need to deter future

violations by removing any

economic benefits to the violator

from failure to comply with the

law;

(e) Aggravating or mitigating

circumstances specific to the

viola tion, including the nature

and extent of the violation, a

violator's degree of cooperation

in correcting the violation and a

violator's good faith efforts to

negotiate a settlement before

formal legal proceedings begin;

and

(f) Lost or impaired

opportuni ties for public use of

the affected state land.

(3) Payment of all or part of a fine may be

waived when purposes of the law and this

rule are not frustrated, and when fairness

would result.

(4) Fines imposed pursuant to this rule

shall be:

(a) $1 - $2, 500 for the first

offense; and

(b) $1,000 - $10,000 for the second

or subsequent offenses.

(c) Fines for first offenses may

exceed $2,500 upon approval by the

Board.

The only considerations under Subsection (2) of the rule

applicable to the facts of thi s case are those in paragraphs

(d) - (f). Also, under the facts of this case, it would be

appropriate to waive part of the fine under Subsection (3) of

the Rule. A $2,000 fine would be appropriate in this case.

23. Under Rule 18 - 21.008(1)(b)5., Respondent m ust remove

his dock structure, or enough of it so that no lease is

required. Another alternative would be for Respondent to enter

into a new lease.

24. Rule 18 - 21.011(1)(b) provides in pertinent part:

10. There shall be an assessment for the

prior unauthorized use of sovereignty land

for after - the - fact lease applications. The

minimum assessment for such applications

shall include:

a. Payment of retroactive lease

fees; and

b. Payment of an additional

annual percentage on the

retroactive lease fe es computed at

a rate equal to two percentage

points above the Federal Reserve

Bank discount rate to member

banks. Such rate shall be

adjusted annually, on October 1 of

each year.

11. There shall be a late payment

assessment for lease fees or other char ges

due under this rule which are not paid

within 30 days after the due date. This

assessment shall be computed at the rate of

12 percent per annum, calculated on a daily

basis for every day the payment is late.

12. If requested by the applicant, the

Board shall determine, based on the

following factors, whether a reduction of

the assessment and an extension of the time

period for payment of the assessment under

the provisions set forth in subparagraph 10.

above shall be granted:

a. The applicant's p rior

compliance with the provisions of

Chapters 253 and 258, F.S., or any

rules adopted thereunder;

b. Any failure of the applicant

to comply with an order of the

Board;

c. Whether any failure to comply

under paragraphs (a) or (b) above

was willful;

d . The need to deter future

violations by removing any

economic benefits to the applicant

from failure to comply with the

law;

e. Aggravating and mitigating

circumstances specific to the

lease application, including the

nature and extent of the

violation, and the applicant's

degree of cooperation in

correcting the violation;

f. Whether payment of the amount

of the assessment or payment by

the time due would create a

substantial hardship that affects

the applicant significantly

different than ot her similarly

situated applicants; and

g. The inability of the applicant

to pay the fees assessed.

RespondentÓs position in this case can be construed as a request

under paragraph (12) of the Rule to reduce the assessment under

paragraphs (10) and (11) of the Rule for an after - the - fact lease

application. However, it would not be appropriate to grant su ch

a request.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that BOT enter a final order: (1) that, within

10 days, Respondent sign the appropriate lease renewal and send

it, along with $1,283.22 i n past due lease fees and interest

owed BOT, plus the lease payment for 2010/2011, by cashierÓs

check or money order made payable to the ÐInternal Improvement

Trust Fund,Ñ with a notation of OGC Case No. 10 - 1948, sent to

3319 Maguire Boulevard, Suite 232, Submerged Lands and

Environmental Resource Program; or (2) that, within 20 days,

Respondent remove his dock structure or at least enough of it to

preempt no more than 1,150 square feet of sovereignty submerged;

and (3) that, within 30 days, Respondent pay BOT a fine in the

amount of $2,000, by cashierÓs check or money order made payable

to the ÐInternal Improvement Trust Fund,Ñ with a notation of OGC

Case No. 10 - 1948, sent to 3319 Maguire Boulevard, Suite 232,

Attention David Herbster, Program Administrator , Submerged Lands

and Environmental Resource Program.

DONE AND ENTERED this 3rd day of November , 2010 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hea rings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November , 2010 .

ENDNOTES

1/ Respondent indicated that he would mail 12 "google maps" and

8 emails as his exhibits 1 - 20, which were received over BOTÓs

objection as to relevance. Instead, Respondent mailed 11

"google maps," which actually were aerial photographs, and 7

pages of ema ils (plus two other documents). The "google maps"

have been marked and received as RespondentÓs Exhibits 1 - 11; the

email pages have been marked and received as RespondentÓs

Exhibits 12 - 18.

2/ Unless otherwise specified rule references are to the

versi on of the Florida Administrative Code in effect at the time

of the final hearing.

3/ All statutory references in the Conclusions of Law are to

the 2010 codification of the Florida Statutes.

COPIES FURNISHED :

Mimi Drew, Secretary

Department of Enviro nmental 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

Lea Cran dall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Christopher Thomas Byrd, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tall ahassee, Florida 32399 - 3000

James R. Therrien

237 North Halifax Avenue

Daytona Beach, Florida 32114 - 4121

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.