10-008197RU Macla Ltd, Ii, Limited Partnership; H. Joseph Hughes, As Trustee Of The Betty Price Hughes Qualified Vacation Residence Trust; And Kershaw Manufacturing Company, Inc. vs. Department Of Environmental Protection And Board Of Trustees Of The Internal Improvement Trust Fund
 Status: Closed
DOAH Final Order on Thursday, November 4, 2010.


View Dockets  
Summary: Petitioners did not prove standing to challenge as unadopted rules two conditions in a beach restoration permit and a position of DEP with regard to when erosion control lines must be established.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ROLAND GUIDRY, AS CO - TRUSTEE OF )

16THE GUIDRY LIVING TRUST, AND )

22OCEANIA OWNER'S ASSOCIATION, )

26INC. , )

28)

29Petitioners , )

31)

32vs. ) Case No. 10 - 5348RU

39)

40DEPARTMENT OF ENVIRONMENTAL )

44PROTECTION AND BOARD OF )

49TRUSTEES OF THE INTERNAL )

54IM PROVEMENT TRUST FUND , )

59)

60Respondents . )

63)

64DAVID H. SHERRY, REBECCA R. )

70SHERRY, AND JOHN S. DONOVAN, )

76)

77Petitioners, )

79)

80vs. ) Case No. 10 - 6205RU

87)

88DEPARTMENT OF ENVIRONMENTAL )

92PROTECTION AND BOARD OF )

97TRUSTEES OF THE INTERNAL )

102IMPROVEMENT TRUST FUND, )

106)

107Respondents. )

109_______________________________ )

111MARCLA LTD, II, LIMITED )

116PARTNERSHIP; H. JOSEPH HUGHES, )

121AS TRUSTEE OF THE BETTY PRICE )

128HUGHES QUALIFIED VACATION )

132RESIDENCE TRUST; AND KERSHAW )

137MANUFACTURING COMPANY, INC., )

141)

142Petitioners, )

144)

145vs. ) Case No. 10 - 8197RU

152)

153DE PARTMENT OF ENVIRONMENTAL )

158PROTECTION AND BOARD OF )

163TRUSTEES OF THE INTERNAL )

168IMPROVEMENT TRUST FUND, )

172)

173Respondents. )

175_______________________________ )

177FINAL ORDER

179These consolidated cases were heard by David M. Maloney,

188Administrative Law Judge , on August 2 - 5, 2010, and August 24 - 25,

2022010, in Fort Walton Beach, Flori da, and September 20, 2010, in

214Tallahassee, Florida.

216APPEARANCES

217For Petitioners: D. Kent Safriet, Esquire

223Joseph Brown, Esquire

226Hopping Green & Sams, P.A.

231119 South Monroe Street, Suite 300

237Tallahassee, Florida 32301

240For Respondents: Kelly L. Russell, Esquire

246Doug las Beason, Esquire

250Department of Environmental Protection

254The Douglas Building, Mail Station 35

26039 00 Commonwealth Boulevard

264Tallahassee, Florida 32399 - 3000

269BACKGROUND

270The Petitioners allege in these consolidated cases that the

279Department made statements that violate Section 120.54(1)(a) ,

286Florida Statutes . The cases a rise from a common source: the

298application by Okaloosa County (the "County") to the Department

308of Environmental Protection and the Board of Trustees of the

318Internal Impro vement Trust Fund ( collectively, the "Department")

328for authority to conduct beach restoration we st of Destin,

338Florida (the "Western Destin Project" or the "Project").

347In response to the application, the Department sent the

356County a Consolidated Notice of Intent to Issue Joint Coastal

366Permit, Variance and Authorization to Use Sovereign Submerged

374Land s (the "NOI"). Attached was a Draft Consolidated Joint

385Coastal Permit and Sovereign Submerged Lands Authorization (the

"393Draft Permit") . The Draft Permit was revised on two occasions

405during the course of the proceedings (the " First Revised Draft

415Permit" a nd the "Second Revised Draft Permit" ).

424The various draft permits contain "Specific Conditions . "

432These consolidated cases concern two of them: Specific

440Condition 1 as it appeared in the Draft Permit and the First

452Revised Draft Permit ( " Original Specific Condition 1 " ) and

462Specific Condition 5 as it appears in the First Revised Draft

473Permit and the Second Revised Draft Permit .

481Original Specific Condition 1 contains several

487requirements. In general, the County must record a certificate

496before the commencem ent of construction associated with the

505restoration. The certificate is required to describe all upland

514properties along the shoreline of the Project. T he certificate

524must be accompanied by a survey of the pre - project Mean High

537Water Line (the "Pre - proje ct MHWL") along the entire length of

551the Project's shoreline.

554In addition to allegations related to Original Specific

562Condition 1, t he petition in Case No. 10 - 5348RU alleges tha t the

577Department made a nother statement that is an unadopted rule :

" 588that an Er osion Control Line (the ' ECL ' ) is not required to be

604established pursuant to Section 161.161, F lorida Statute , for a

614beach restoration project unless ' state funds ' are used for the

626construction (as opposed to just the design) of a beach

636restoration project ." Case No. 10 - 5348RU, Petition for an

647Administrative Determination Co ncerning Unadopted Rules, at 2 .

656As found below, the Department developed a position with regard

666to when ECLs are required in beach restoration projects (the

"676Department ECL Positi on").

681In general, the statement in Specific Condition 5 which is

691alleged to constitute an unadopted rule in S pecific Condition 5

702advises the County that no beach restoration work can be

712performed on private upland property unless authorization from

720the owner o f the property has been obtained and submitted to the

733Department . There is an exception: the permitted party can

743submit a judgment from a court that such an authorization is not

755required.

756Original Specific Condition 1, the Department ECL Position

764and Sp ecific Condition 5 have not been adopted as rules pursuant

776to Section 120.54, Florida Statutes.

781STATEMENT OF THE ISSUES

785All Three Cases

788Whether the Petitioners have standing to bring their

796respective challenges pursuant to Section 120.56(4), Florida

803Statu tes?

805Case No. 10 - 5348RU

810Whether either or both Original Specific Condition 1 and

819the Department ECL Position constitute a rule?

826Case Nos. 10 - 6205 and 10 - 8197

835Whether Specific Condition 5 constitutes a rule?

842Attorney's Fees

844Whether an order should be ent ered against the Department

854for costs and attorney's fees under Section 120.595(4), Florida

863Statutes?

864PRELIMINARY STATEMENT

866a. Posture of the Cases

871On July 13, 2010, Roland Guidry, as Co - Trustee of the

883Guidry Living Trust and Oceania Owners ' Associati on, Inc. (the

"894Oceania Petitioners") filed their Petition for an

902Administrative Determination Concerning Unadopted Rules. The

908petition was assigned Case No. 10 - 5384RU.

916On July 26, 2010, the Department filed a "Notice of Filing

927Request for Modification an d Revised, Draft Joint Coastal

936Permit " (the " First Revised Draft Permit"). The First Revised

946Draft Permit made two changes to the Draft Permit .

956The first change is summarized in a section of the Revised

967Draft Permit entitled "Activity Location." It excl udes the

976Oceania members' common elements property from the fill

984placement area .

987The second change adds the language to the Draft Permit's

997Specific Condition 5 with regard to the required authorizations

1006from owners of private upland property on which work will be

1017performed during the restoration.

1021The Oceania Petitioners moved for the case to be

1030consolidated with two cases that challenged the Draft Permit:

1039DOAH Case Nos. 10 - 0515 and 10 - 0516 (th e "Permit Challenge

1053Cases"). The motion was granted .

1060On July 26, 2010, David H. Sherry, Rebecca R. Sherry, and

1071John S. Donovan, (the "Sherry Petitioners") filed pursuant to

1081Section 120.56(4), Florida Statutes, their Petition for

1088Administrative Determination Concerning Unadopted Rules. The

1094petition was assigned DOA H Case No. 10 - 6205 RU.

1105In a second order entered July 27, 2010, the Oceania

1115Petitioners were granted leave to amend their petition in Case

1125No. 10 - 5348RU to add the allegations in Case No. 10 - 6205 RU. A n

1142order was entered consolidating Case No. 10 - 62 0 5 RU wi th the

1157Permit Challenge Cases and Case No. 10 - 5348 RU. The cases

1169proceeded to final hearing with the two Permit Challenges and

1179the two Unadopted Rule Challenges (Case Nos. 10 - 5348 RU and 10 -

11936205 RU) consolidated.

1196On August 18, 2010, during the course of the final hearing

1207of the four consolidated cases, the Department filed a notice of

1218a second set of revisions to the proposed joint coastal permit

1229(the "Second Revised Draft Permit") . The Department revised

1239Original Specific Condition 1 to delete references t o the

1249requirement of a Pre - project MHWL and instead to require that an

1262ECL be set in accordance with the procedures of S ection s

1274161.141 - 161.211, Florida Statutes, specifically recognizing that

1282the Oceania common elements had been excluded from the Project .

1293On August 23, 2 010, MACLA Ltd. II, Limited Partnership

1303("MACLA"), and Joseph H. Hughes as Trustee of The Betty Price

1316Hughes Qualified Vacation Residence Trust and Kershaw

1323Manufacturing Company, Inc. (the "MACLA Petitioners") filed

1331their Petition for an A dministrative Determination Concerning

1339Unadopted Rules. The petition alleges that Specific Condition 5

1348is an unadopted rule.

1352The petition was assigned Case No. 10 - 8197RU and was

1363consolidated with the two other Unadopted Rule Challenges and

1372the two Permit Challenges so that the five consolidated cases

1382continued together in the hearing that had commenced three weeks

1392earlier .

1394b. The Hearing

1397The final hearing in the four consolidated cases commenced

1406on August 2, 2010. The hearing took place over six days. The

1418final hearing on the three Unadopted Rule Challenges ended

1427September 20, 2010 , before the conclusion of the final hearing

1437in the Permit Challenge Cases .

1443After the County and the Holiday Isle Intervenors presented

1452their cases in the Permit Challenges, the Department presented

1461its case. Testimony relevant to the Unadopted Challenges came

1470from Ellen McLain Edwards, Ph.D. Petitioners called William

1478Dally, Ph.D; Roland Guidry ; David Sherry ; Rebecca Sherry ; John

1487Donovan ; and Michael Barnett.

1491Over the obj ection of the Department, the Petitioners re -

1502called Michael Barnett and called West Gregory in reference to

1512the Unadopted Rule Challenges. Petitioners called Dr. Joseph

1520Hughes, Royce Kershaw, and Louise Brooker, on August 25, 2010,

1530two days after the fi ling of the petition in Case No. 10 - 8197RU

1545to establish the standing of the petitioners in that case.

1555On September 20, 2010, the Department called Dr. Edwards in

1565rebuttal in the MACLA Unadopted Rule Challenge (Case

1573No. 10 - 8197RU).

1577c. Severance

1579The thre e Unadopted Rule Challenges remain consolidated but

1588they have been severed from the Permit Challenges .

1597FINDINGS OF FACT

1600The Draft Permit

16031 . The Draft Permit (and its revisions) authorizes the

1613County "to construct the work outlined in the activity

1622descrip tion and activity location of this permit and shown on

1633the approved permit drawing s , plans and other documents attached

1643hereto." Joint Exhibit, Vol. III, Tab 9, page 3 of 26.

16542 . The "activity description" and the "activity location"

1663are detailed on the first page of the Draft Permit. See Joint

1675Exhibit, Vol. III, Tab 9 (first page of 26). The drawings,

1686plans and other documents attached to the Draft Permit are

1696contained under Tab 10 of Volume III of the Joint Exhibit.

1707The Parties

17093 . Petitioner Guidry is co - trustee of the Guidry Living

1721Trust (the "Guidry Living Trust") . He has independent authority

1732to protect, conserve, sell, lease, encumber or otherwise dispose

1741of trust assets. Th os e assets include a condominium unit in the

1754Oceania Condominium . The condominium unit owned by the Guidry

1764Living Trust includes an undivided interest held with all other

1774unit owners in the common property at the Oceania Condominium.

1784The common property includes real property that fronts the Gulf

1794of Mexico located at 720 G ulf Shore Drive in the City of Destin,

1808Florida. T he real property has the MHWL of the Gulf of Mexico

1821as its southern boundary .

18264 . Petitioner Oceania is a condominium association

1834established pursuant to Florida's Condominium Act, Chapter 718,

1842Florida St atutes. It does not own any real property.

1852Mr. Guidry testified that he i s authorized in his capacity as

1864p resident of the Association to initiate and pursue this

1874administrative proceeding on its behalf . No documents were

1883entered in evidence reflecting t hat Oceania's Board of Directors

1893approved the filing of the petition.

18995 . The owners of condominium units at the Oceania

1909Condominium , including the Guidry Trust, compr ise the membership

1918of Oceania. The unit owners all own undivided shares in the

1929Oceania Condominium common property including the real estate

1937that extends at its southern boundary to the MHWL of the Gulf of

1950Mexico. The owners did not vote on whether to file the petition

1962in Case No. 10 - 0 5 348 RU.

19716 . Petitioners David and Rebecca Sherry are le aseholders

1981of real property where they reside . L ocated at 554 Coral Court,

1994Number 511, Fort Walton Beach, Florida 32548 , the property is in

2005an area in Okaloosa County on Santa Rosa Island that is known as

2018Okaloosa Island. The property leased by the Sherr y s is not

2030wi thin the Western Destin Project .

20377 . Petitioner John Donovan is a leaseholder of real

2047property located at 909 Santa Rosa Boulevard, Numbers 131 - 132,

2058El Matador Condominium, Fort Walton Beach, F lorida 32548 , in t he

2070same area as the Sherry's res idence.

20778 . Petitioner MACLA II, Ltd., is a Texas Limited

2087Partnership. Louise Brooker is its p resident. It owns real

2097property which fronts the Gulf of Mexico located at 620 Gulf

2108Shore Drive, Destin, F lorida . T he southern boundary of the

2120property is t he MHWL of the Gulf of Mexico. The MACLA property

2133is located adjacent to the shoreline that is the subject of the

2145Western Destin Project.

21489 . The Betty Price Hughes Qualified Vacation Residence

2157Trust (the "Hughes Trust") owns real property at 612 Gulf Shor e

2170Drive. I ts southern boundary is deeded the MHWL of the Gulf of

2183Mexico. The property is located adjacent to the shoreline

2192subject to the Western Destin Project. Petitioner H. Joseph

2201Hughes is a trustee of the Hughes Trust.

220910 . Petitioner Kershaw Manu facturing Company, Inc. , an

2218Alabama corporation, is the owner of real property located at

2228634 Gulf Shore Drive, Destin , F lorida . I ts southern boundary

2240the property is the MHWL of the Gulf of Mexico. The property is

2253located adjacent to the shoreline subje ct to the Western Destin

2264Project. Royce Kershaw is the p resident of the Kershaw

2274Manufacturing Company. He testified that as p resident of the

2284company, he has the authority to act on behalf of the company

2296and has the power to bind the corporate entity.

230511 . The Department of Environmental Protection is

2313responsible for the administration of Chapter 161, Florida

2321Statutes, Parts I and II, the "Beach and Shore Preservation

2331Act." § 161.011, Fla. Stat. The Board of Trustees of the

2342Internal Improvement Fund is responsible for stewardship of its

2351public trust properties under Chapter 253, Florida Statutes .

2360Included among those properties is the sovereignty submerged

2368lands along the coast of the Gulf of Mexico .

2378The ECL and the MHWL

238312 . In the context of the Beac h and Shore Preservation

2395Act , the MHWL and the ECL w ere discussed by the Florida Supreme

2408Court in Walton County v. Stop the Beach Renourishment, Inc . ,

2419998 So. 2d 1102 (Fla. 2008) (the "Walton County Supreme Court

2430Case") :

2433Pursuant to section 161.141, when a local

2440government applies for funding for beach

2446restoration, a survey of the shoreline is

2453conducted to determine the MHWL for the

2460area. Once established, any additions to

2466the upland property landward of the MHWL

2473that result from the restoration project

2479remain the property of the upland owner

2486subject to all governmental regulations,

2491including a public easement for traditional

2497uses of the beach. § 161.141.

2503After the MHWL is established, section

2509161.161(3) provides that the Board must

2515determine the area t o be protected by the

2524project and locate an ECL. In locating the

2532ECL, the Board "is guided by the existing

2540line of mean high water, bearing in mind the

2549requirements of proper engineering in the

2555beach restoration project, the extent to

2561which erosion or avu lsion has occurred, and

2569the need to protect existing ownership of as

2577much upla nd as is reasonably possible."

2584§ 161.161(5).

2586Pursuant to section 161.191(1), this ECL

2592becomes the new fixed property boundary

2598between public lands and upland property

2604after th e ECL is recorded. And, under

2612section 161.191(2), once the ECL has been

2619established, the common law no longer

2625operates "to increase or decrease the

2631proportions of any upland property lying

2637landward of such line, either by accretion

2644or erosion or by any ot her natural or

2653artificial process."

2655Walton County , at 1108.

2659The Pre - project MHWL in This Case and the ECL

267013 . The Pre - project MHWL called for by Original Specific

2682Condition 1 was never established .

26881 4 . No evidence was introduced as to where the Pre - p roject

2703MHWL would h ave been located had it been set and in particular,

2716where it would have been located in relation to an ECL .

272815 . Rod Maddox is a long - time surveyor with the

2740Department's Division of State Land in the Bureau of Survey &

2751Mapping . See P - 2 44. Mr. Maddox testified about his experience

2764with pre - project MHWLs and where they are located in relation to

2777ECLs. F amiliar with the term "pre - project mean high water

2789line," Mr. Maddox defined it as the mean high water line prior

2801to the placement of fi ll used in a beach restoration project.

2813See id. at 29. He testified that pre - project MHWLs have been

2826required in the many beach restoration case s with which he is

2838familiar . He testified further that whe n it comes to location,

2850there is no difference betw een a pre - pro ject MHWL and an ECL.

2865The d en ominations may be different but Mr. Maddox testified "a s

2878to how . . . established, I see them as one and the same." Id.

2893at 30.

2895Original Special Condition 1: the Pre - project MHWL

29041 6 . On December 31, 2009, the D epartment issued the NOI.

2917Attached to it was the Draft Permit. The Draft Permit contained

2928the following paragraph as Special Condition 1:

2935Prior to construction of the beach

2941restoration project, the Permittee must

2946record in the official records of Okaloos a

2954County a Certificate, approved by the

2960Department, which describes all upland

2965properties (including their owners of

2970record) along the entire shoreline of the

2977permitted project, with an attached

2982completed survey of the pre - project Mean

2990High Water Line ("M ean High Water Line

2999Survey") conducted along the entire

3005permitted project shoreline length. The

3010Mean High Water Line Survey must have been

3018completed in a manner complying with Chapter

3025177, Florida Statutes, as determined by the

3032Department. No constructio n work pursuant

3038to this joint coastal permit shall commence

3045until the Certificate and attached Mean High

3052Water Line Survey have been approved and

3059archived by the Department's Bureau of

3065Survey and Mapping, and the Department has

3072received proof of recording of such

3078documents (see Specific Condition No. 4.c.).

3084T he approved Certificate and attached Mean

3091High Water Line survey shall be attached to,

3099and kept as part of this joint coastal

3107permit and authorization to use sovereign

3113submerged lands. If in the futur e the

3121Permittee seeks reimbursement from the State

3127for costs expended to undertake (construct)

3133the permitted project, then, prior to, and

3140as a condition of receipt of any authorized

3148and approved reimbursement, the Board of

3154Trustees will establish an ECL co nsistent

3161with the provisions of Chapter 161, Florida

3168Statutes. The Permittee shall be required

3174to record such a line in the Okaloosa County

3183official records.

3185Joint Exhibit, Vol. III, No. 9.

319117 . The Oceania Petitioners, as landowners within the

3200Project area, challenged the issuance of the Draft Permit on

3210January 14, 2010. See Case No. 10 - 0516. Among the bases for

3223the challenge was that the Department lacked authority to

3232implement Original Special Condition 1 and, in particular, its

3241requirement that th e County record a completed survey of the

3252pre - project MHWL in lieu of the establishment of an ECL.

32641 8 . On July 26, 2010, the Department revised the Draft

3276Permit to eliminate from the Project the common property owned

3286by the unit owners o f the Oceania Con dominium. The change was

3299supported by a letter from Michael Trudnak, P.E., of Taylor

3309Engineering, Inc., on behalf of the County which stated: " On

3319behalf of Okaloosa County, Taylor Engineering submits this

3327request to modify the project area and Draft Join t Coastal

3338Permit for the Western Destin Beach Restoration Project [file

3347nos. excluded]. The applicant has decided to remove the Oceania

3357Condominium property from the beach fill placement area. " Joint

3366Exhibit, Vol. III, Tab 15, Exhibit A. The revised pro ject, as

3378described in permit drawings enclosed with Mrudnak's letter

3386includes two reaches: Reach 1 extends from the east jetty of

3397East Pass to approximately 600 ft east of FDEP reference

3407monument R - 22 (R22.6) and Reach 2 extends from approximately 200

3419ft east of R - 23 (R - 23.2) to R - 25.5. The Oceania Condominium

3435property is in the gap between the two b eaches . Additionally,

3447the letter request ed that the Department modify Specific

3456Condition 1 of the Draft Permit to reflect the modified project

3467area so th at th e MHWL Survey requirement of Specific Condition 1

3480would exclude the Oceania Condominium property.

34861 9 . In accord with the request, Special Condition 1 was

3498amended to add the following language: "With respect to the

3508shoreline seaward of the Oceania O wner's [sic] Association,

3517Inc., members' common elements property, neither a pre - project

3527Mean High Water Line survey, nor a Certificate with a

3537description of the pre - project Mean High Water Line shall be

3549recorded in conjunction with this coastal permit." Joint

3557Exhibit, Vol. III, Tab 15, the First Revised Draft Permit, Page

35685 of 26.

357120 . On August 4, 2010, as the Department neared the end of

3584its case in the third day of the hearing , it announced that the

3597Revised Draft Permit would "be revised [again, this time] to

3607require the establishment of an ECL under the applicable

3616statute." Tr. 621.

361921 . The draft p ermit, accordingly, was revised for a

3630second time (the "Second Revised Draft Permit") . The Department

3641carried out the second revision in a notice filed at the

3652Division of Administrative Hearings on August 18, 2010 (the

3661August 18, 2010 , Notice).

366522 . The August 18, 2010 , Notice contains two changes to

3676the First Revised Draft Joint Permit.

368223 . The first change delete s the existing language in

3693Original Sp ecific Condition 1 (the language challenged in

3702Case No. 10 - 5348 RU ) in its entirety. It substitute s the

3716following language:

3718Prior to construction of the beach

3724restoration project, the Board of Trustees

3730will establish an Erosion Control Line along

3737the sh oreline of the beach restoration

3744project. The Erosion Control Line shall be

3751established consistent with the provisions

3756of ss. 161.141 - 1 61.211, Florida Statutes.

3764An Erosion Control Line shall not be

3771established in conjunction with this joint

3777coastal permi t with respect to the shoreline

3785seaward of the Oceania Owner's [sic]

3791Association, Inc. members' common elements

3796property. In lieu of conducti ng a survey,

3804the Board of Trustees may accept and approv e

3813a survey as initiated, conducted, and

3819submitted by Okalo osa County if said survey

3827is made in conformity with the appropriate

3834principles set forth in ss. 161.141 - 161.211.

3842Department of Environmental Protection's and Board of Trustees

3850of the Internal Improvement Fund's Notice of Revisions to the

3860Proposed Joint C oastal Construction Permit, page 3 of 4.

387024 . The second change is made with respect to Specific

3881Condition No. 4(c) of the First Revised Draft Permit , one of a

3893list of items to be submitted to the Department for approval

3904prior to the commencement of const ruction and the issuance of a

3916Notice to Proceed by the Department . The existing language i s

3928deleted in its entirety and the following language i s

3938substituted:

3939Written documentation that the Erosion

3944Control Line required by Special Condition

3950Number 1 has been filed in the public

3958records of Okaloosa County.

3962Id.

3963The Department ECL Position

3967a. Chapter 161: Beach and Shore Preservation

397425 . Chapter 161 , Florida Statutes, governs "Beach and

3983Shore Preservation." "Parts I and II of this chapter may be

3994known and cited as the 'Beach and Shore Preservation Act.'"

4004§ 161.011, Fla. Stat.

400826 . Part I governs "Regulation of Construction,

4016Reconstruction, and Other Physical Activity." Sections 161.011

4023through 161.241 comprise Part I. The Department developed it s

4033position on ECLs claimed by Petitioners to be an Unadopted Rule

4044by considering Part I, in particular Sections 161.088 (which

4053declares the public policy to properly manage and protect

4062Florida's beaches) through 161.211.

406627 . At some point in 2009, the De partment saw a

4078distinction related to ECLs in S ections 161.088 - 161.211 between

4089beach restoration projects where state funding was used for

4098construction and projects w here no state funds were used. The

4109former seemed to require ECLs, the latter not.

411728 . S everal statutory provisions were viewed as

4126particularly relevant. For example, Section 161.141, Florida

4133Statutes, declares that it is th e public policy of the state "to

4146cause to be fixed and determined, pursuant to beach restoration

4156. . . projects, the bo undary line between sovereignty lands

4167. . . and the upland properties adjacent thereto . . . ."

41802 9 . The section that mainly governs ECLs is Sec tion

4192161.161 . It provides the procedure for approval of projects for

4203the restoration and maintenance of criti cally eroded beaches ,

4212subject to a beach management plan which is funded, in part, by

4224the state .

422730 . With regard to ECLs , t he s tatute provides:

4238(3) Once a project [for the restoration and

4246maintenance of a critically eroded beach] is

4253determined to be und ertaken, a survey of all

4262or part of the shoreline within the

4269jurisdiction of the local government in

4275which the beach is located shall be

4282conducted in order to establish the area of

4290beach to be protected by the project and

4298locate an erosion control line.

4303* * *

4306(4) Upon completion of the survey depicting

4313the area of the beach erosion control

4320project and the proposed location of the

4327erosion control line, the board of trustees

4334shall give notice of the survey and the date

4343on which the board of trustees will h old a

4353public hearing for purpose of receiving

4359evidence on the merits of the proposed

4366erosion control line and, if approval is

4373granted, of locating and establishing such

4379requested erosion control line . . . in

4387order that any persons who have an interest

4395in the location of such requested erosion

4402control line can be present at such hearing

4410to submit their views concerning the precise

4417location of the proposed erosion control

4423line.

4424* * *

4427(5) The board of trustees shall approve or

4435disapprove the erosion contro l line for a

4443beach restoration project. In locating said

4449line, the board of trustees shall be guided

4457by the existing line of mean high water,

4465bearing in mind the requirements of proper

4472engineering in the beach restoration

4477project, the extent to which the erosion or

4485avulsion has occurred, and the need to

4492protect existing ownership of as much upland

4499as is reasonably possible.

4503§ 161.161, Fla. Stat.

4507b. D e velopment of the Department's Position on ECLs

451731 . Prior to 2009, the Department's established ECLs fo r

4528beach restoration projects whether the project ' s construction

4537was supported by state funding or not. There was an exception :

4549when the property landward of the MHWL was owned by the s tate .

4563I n such a case, the Department saw no need to set an ECL since

4578b oth the sovereignty lands and the adjacent uplands property are

4589owned by the state.

459332 . This position held at least through J anuary 15, 2009,

4605when the Department held a workshop and hearing pursuant to

4615Section 161.161, Florida Statutes, in Okaloosa Count y to

4624establish an ECL for the Western Destin Project. The hearing

4634officer who conducted the ECL hearing was West Gregory,

4643Departm ent Assistant General Counsel.

464833 . While consideration of where the ECL should be

4658established for the Western Destin Project was underway, there

4667were ongoing discussions by e - mail and in briefing s of whether

4680the statute required an ECL . The discussion was prompted when

4691Mr. G regory, as Department Assistant General Counsel, drafted a

4701m emorandum (the "Draft Memorandum") to Michae l Barnett, Chief of

4713the Bureau of Beaches and Coastal Systems (the Bureau) to be

4724sent through Paden Woodruff, an Environmental Administrator .

4732The memorandum related to another beach restoration project in

4741Okaloosa County: a project in volving Eglin Air Fo rce Base .

475334 . The Draft M emorandum shows a date of Ja nuary "XX",

47662009 , and is stamped "DRAFT." P - 119. It presents the question

"4778Should . . . [the Department] require the United States Air

4789Force (USAF) to establish an erosion control line (ECL) for the

4800beach restoration project located on Eglin AFB?" Id.

480835 . The Draft M emorandum provides a brief answer: "No,

4819. . . because the beach . . . is not critically eroded." Id.

483336 . The memorandum recognize s the public policy of the

4844state to fix the boundary between public and private lands f or

4856beach restoration projects in Section 161.141, Florida Statutes ,

4864and a requirement that the Board of Trustees "must establish the

4875line of mean high water prior to the commencement of a beach

4887restoration project , " id. , leading to the suggestion that each

4896and every beach restoration project must establish an ECL.

490537 . The Draft M emorandum, however, construes Section

4914161.141, Florida Statutes, with Section 161.161, Florida

4921Statutes, and draws support from an Attorney Gene ral Opinion and

4932the Walton County Florida Supreme Court case to conclude tha t it

4944is only when a project is undertaken with state funding that an

4956ECL must be established. In the case of the Eglin AFB beach

4968restoration projects, the Draft M emorandum conclud es:

4976This determination not to establish an ECL

4983on the Eglin AFB beach restoration project

4990would not preclude the USAF from obtaining a

4998JCP permit. Rather, it precludes the USAF

5005from receiving state funding assistance.

5010Id.

50113 8 . The Draft M emorandum was not sent to the intended

5024recipients . It was s ubmitted to two other lawyers in the

5036Department. Mr. Gregory did not receive comments from them.

504539 . Although no comments were made to Mr. Gregory after

5056the draft of the memorandum was sent to other members of the

5068legal staff, the subject remained under discussion in the

5077Department in early 2009 .

508240 . Sometime in early 2009 , based on a legal analysis of

5094Department attorneys, the Department took the position that an

5103ECL is required to be set when state funds are used for the

5116construction of a project. The converse of this position, that

5126an ECL is not required to be set when no state funds are

5139involved, is the statement alleged to be an unadopted rule.

514941 . Two permits were issued that did not require an ECL:

5161one for the Eglin AFB beach restoration project in March of

51722009 , and an other that was an emergency permit for Holiday Isle.

5184As with Specific Condition 1 in the Western Destin Project, the

5195determination to not require an ECL was because of the lack of

5207s tate funding. As Mr. Barnett testified about the two permits,

5218there "is no State cost share for construction . . . [and]

5230that's the reason [the Department] didn't require establishment

5238of an ECL." Tr. 1279.

524342 . Mr. Gregory's Draft Memorandum was never finalized .

5253The Department issued three permits or draft permits (including

5262for the Western Destin Project) with s pecific c onditions that

5273required pre - project MHWL s and that did not require ECLs.

5285Otherwise , the Department has not committed the Depar tment ECL

5295Position to writing. Nonetheless, the Department ECL Position

5303was stated in a deposition taken in this case on July 26, 2010.

531643 . On July 26, 2010, the deposition of Janet Llewellyn,

5327the Director of Water Resources Management was taken by

5336Petitioner s. Director Llewellyn is "responsible ultimately for

5344all the projects that are processed and actions taken out of

5355[the] division." P - 223 at 10. These include permits issued by

5367the Bureau and in particular, the Draft Permit, First Revised

5377Draft Permit an d the Second Draft Permit for the Project.

538844 . When asked about the Department's statement that an

5398ECL is not required when there is not state funding,

5408Ms. Llewellyn preferred to rephrase the Department position as

5417to when an ECL is required rather than when it is not required.

5430She then testified that an ECL is required when there is "state

5442funding involved through [the Department's] funding program."

5449Id. at 13.

545245 . Ms. Llewellyn was unable to pinpoint the moment t he

5464Department reached such a position other than:

5471[t]he question came up sometime in the last

5479year or two -- I couldn't tell you when --

5489about what the statute actually required in

5496terms of when it was proper to set an

5505erosion control line or required. And our

5512attorneys did a legal analysis, again, of

5519the statute, and that was their legal

5526opinion of what the statute required.

5532Tr. 14 . Wh atever the date that such a position was precisely

5545firmed up, Ms. Ll e wellyn was able to testify on July 26, 2010,

"5559that if state funding is going to a projec t, than an ECL needs

5573to be set. That's what the statute requires." Id. This

5583statement was based on the opinions of Department attorneys

5592prior to their use in connection with the issuance of beach

5603restoration permits in Okaloosa County.

560846 . The Departm ent has not initiated rule - making with

5620respect to its ECL Position. Whether r ule - making would be

5632initiated was not known by the Bureau Chief on August 24, 2010,

5644during his testimony in the final hearing.

5651Change of Position

565447 . The Department modified it s position on ECLs that it

5666appeared to have at the time of Ms. Llewellyn's deposition on

5677August 4, 2010 . A s detailed above , it announced that an ECL

5690would be required for the Western Destin Project , after all .

5701The modification was formalized with the fil ing of the Second

5712Revised Draft Permit on August 18, 2010.

5719Specific Condition 5

572248 . Before the challenged language in Specific Condition 5

5732was added by the First Revised Draft Permit, the Department had

5743relied on General Condition 6 to give notice to per mittees that

5755the permit did not allow trespass :

5762This permit does not convey to the Permittee

5770or create in the Permittee any property

5777right, or any interest in real property, nor

5785does it authorize any entrance upon or

5792activities on property which is not own ed or

5801controlled by the Permittee. The issuance

5807of the permit does not convey any vested

5815rights or any exclusive privileges.

5820Joint Ex. 9.

582349 . Based on the petitions in the Permit Challenge Cases,

5834the Department proposed in the First Revised Draft Permi t to add

5846to Specific Condition 5 the language that is underscored in the

5857following:

5858The Permittee is advised that no work shall

5866be performed on private upland property

5872until and unless the required authorizations

5878are obtained. Sufficient authorizations

5882sh all included: (1) written evidence of

5889ownership of any property which will be used

5897in carrying out the project; (2)

5903authorization for such use from the property

5910owner which upland of mean high - water; (3)

5919construction and management easements from

5924upland p roperty owners; or (4) a judgment

5932from a court of competent jurisdiction which

5939reflects that such authorization, in whole

5945or in part, is not required.

5951The Permittee is also advised to schedule

5958the pre - construction conference at least a

5966week prior to the i ntended commencement

5973date. At least seven (7) days in advance of

5982a pre - construction conference, the Permittee

5989shall provide the written authorizations for

5995the portion of the project for which

6002construction is about to commence, as

6008required above , written n otification,

6013advising the participants (listed above) of

6019the agreed - upon date, time and location of

6028the meeting, and also provide a meeting

6035agenda and a teleconference number.

6040Joint Exhibit, Volume III, Tab 15, the First Revised Draft

6050Permit, Page 7 of 26 .

605650 . There was no evidence that the language added to

6067Specific Condition 5 by the First Revised Draft Permit had been

6078in any other permits or that the Department intended to use the

6090language in any other beach restoration permits.

609751 . Other than whate ver might be gleaned from the Draft

6109Permit, itself (and its revisions), t here was no evidence

6119offered that the property of any of the petitioners , in fact,

6130would be used in the Western Destin Beach Project.

6139CONCLUSIONS OF LAW

614252 . The Division of Administ rative Hearings has

6151jurisdiction over the parties and the subject matter of this

6161proceeding. § 120.56, Fla. Stat.

6166Standing

616753 . "Any person substantially affected by an agency

6176statement may seek an administrative determination that the

6184statement violate s s. 120.54(1)(a)." § 120.56(4)(a), Fla. Stat.

619354 . To e stablish standing to challenge an agency statement

6204under the "substantially affected" test, a party must show (1)

6214that the rule or policy will result in a real and immediate

6226injury in fact, and (2) that the alleged interest is within the

6238zone of interest to be protected or regulated. Jacoby v. Fla.

6249Bd. of Med. , 917 So. 2d 358, 360 (Fla. 1st DCA 2005).

6261a. Original Specific Condition 1

6266and the Department ECL Position

627155 . Petitioners have failed to demonstrate that they are

6281substantially affected by either Original Specific Condition 1

6289or the Department ECL Position . They did not demonstrate that

6300Original Specific Condition 1 or the Department ECL Position

6309would result in a real and immediate injur y in fact.

632056. They did not show where a pre - project MHWL would be in

6334relation to where an ECL wo uld be. Mr. Maddox' testimony,

6345moreover, indicated that there would be no difference in their

6355location; they would be in the same place. Without a

6365demonstr ation of where the two lines would be and how

6376Petitioners would be affected by the setting of a Pre - project

6388MHWL rather than an ECL , Petitioners have not demonstrated any

6398injury in fact to them caused by Original Specific Condition 1

6409or the Department ECL Position.

64145 7 . Furthermore, United Wisconsin Life Insurance Company

6423v. Fla. Dep't of Life Ins. , 831 So. 2d 239 (Fla. 1st DCA 2002)

6437states the following:

6440United Wisconsin has no right to pursue a

6448separate, collateral challenge to an alleged

6454nonrule policy where an adequate remedy

6460exists through a section 120.57 proceeding.

6466United Wisconsin does not dispute the

6472assertion that it was free to make, and in

6481fact did make, the same arguments raised in

6489this case in the then - pending section 120.57

6498proceeding. Uni ted Wisconsin has an

6504adequate forum in the section 120.57,

6510Florida Statutes, proceeding and the now -

6517pending appeal of the Department's final

6523order in that case.

6527United Wisconsion at 240. This holding of the court seems to

6538have been approved by the Florid a Legislature when it amended

6549Section 120.57, Florida Statutes, to add the following language:

6558An agency or administrative law judge may

6565not base agency action that determines the

6572substantial interests of a party on an

6579unadopted rule. The administrative l aw

6585judge shall determine whether an agency

6591statement constitutes an unadopted rule.

6596§ 120.57(1)(e), Fla. Stat.

660058 . These challenges to Specific Condition 1 were

6609litigated alongside the Section 120.57 Permit Challenges. Had

6617the requisite showings been made that Petitioners substantial

6625interests were affected by Original Specific Condition 1 and had

6635the condition been shown to meet the definition of a "rule" in

6647Section 120.52(16), Florida Statutes, the remedy called for by

6656Section 120.57(1)(e), Florida S tatutes, was achieved when the

6665Department changed Specific Condition 1 to require and ECL

6674rather than a Pre - project MHWL.

6681Specific Condition 5

66845 9 . Petitioners have not demonstrated that their interests

6694will be substantially affected by Specific Condition 5.

670260 . As a first step in showing that they are substantially

6714affected by Specific Condition 5, Petitioners must show that

6723their property will be used during the Western Destin Project.

673361 . If they show that their property will be used by the

6746County d uring the beach restoration activity, then they must

6756show how they will be substantially affected if they are asked

6767for their authorization and any events that follow as the result

6778of their decision .

678262 . The Sherrys and Mr. Donovan do not own property al ong

6795the shoreline that is within the Western Destin Project. The re

6806is no p otential for their property to be used for the Project.

6819There are no circumstances related to the Project , therefore,

6828w hen they will be asked for their authorization .

683863 . The Oce ania Petitioners owned property along the

6848shoreline of the Project when the Draft Permit was issued. But

6859the shoreline adjacent to their property is now excluded

6868from the Project. The Oceania Petitioners offered no evidence

6877that their property in the gap between the two segments of the

6889beach to be restored would be used during the restoration.

689964 . The MACLA Petitioners own property alo ng the shoreline

6910of the Project. Petitioners claim in their proposed recommended

6919order that "[t]he Western Destin Proje ct as designed and

6929approved in the Draft JCP contemplates that the private property

6939of Petitioners, MACLA, Hughes Trust and Kershaw will be used in

6950carrying out the project." Para. 50 of Petitioners' Proposed

6959Final Order at 19.

696365 . A review of the Draft Permit indicat es that upland

6975property along the shoreline will be used to complete the

6985Project. There was no expert evidence, however, that explained

6994the actual mechanics and logistics of beach restoration and

7003whether or not all upland property along a s egment of beach to

7016be restored had to be used to construct the Project. Nor was

7028there evidence that if authorization was refused whether that

7037meant the Project could not go forward.

704466 . On the assumption that the MACLA Petitioners' property

7054must be used for the Project to proceed, that showing alone is

7066not sufficient proof of standing . Okaloosa County is still

7076required to seek the authorization of the MACLA Petitioners .

7086T he MACLA Petitioners have the apparent right to refuse ( which

7098e ach profess they w i ll do ) . Being asked for authorization which

7113is refused can hardly be said to amount to their interests being

7125substantially affect ed .

712967 . Specific Condition 5 contemplates satisfaction of the

7138condition if a court of competent jurisdiction rules that an

7148a uthorization is not required. On the state of this record,

7159however, it is speculative as to whether the County would sue

7170the MACLA Petitioners to obtain a judgment to that effect should

7181their property be needed for the Project and should they refuse

7192autho rity to the County to use it .

720168 . Petitioners have failed to demonstrate any injury to

7211them caused by Specific Condition 5. None of the Petitioners

7221have proven that they have standing to seek a determination that

7232Specific Condition 5 is an Unadopted Rul e.

724069 . In light of the rulings in this order on the standing

7253issues, there is no need to address the remaining issues related

7264to violations of Section 120.54(1)(a), Florida Statutes.

727170 . Petitioners are not entitled to attorney ' s fees and

7283costs under S ection 120.595(4), Florida Statutes.

7290ORDER

7291The petitions in Case Nos. 10 - 5 348 RU, 10 - 6205RU, and 10 -

73078197RU, are dismissed for lack of standing.

7314DONE AND ORDERED this 4th day of November, 2010, in

7324Tallahassee, Leon County, Florida.

7328S

7329DAVID M. MALONEY

7332Administrative Law Judge

7335Division of Administrative Hearings

7339The DeSoto Building

73421230 Apalachee Parkway

7345Tallahassee, Florida 32399 - 3060

7350(850) 488 - 9675

7354Fax Filing (850) 921 - 6847

7360www.doah.state.fl.us

7361Filed with the Clerk of th e

7368Division of Administrative Hearings

7372this 4th day of November , 2010.

7378COPIES FURNISHED :

7381D. Kent Safriet, Esquire

7385Hopping Green & Sams, P.A.

7390Post Office Box 6526

7394Tallahassee, Florida 32314

7397Kelly L. Russell, Esquire

7401Department of Environmental Protect ion

7406The Douglas Building, Mail Station 35

74123900 Commonwealth Boulevard

7415Tallahassee, Florida 32399 - 3000

7420MiMi Drew, Secretary

7423Department of Environmental Protection

7427The Douglas Building

74303900 Commonwealth Boulevard

7433Tallahassee, Florida 32399 - 3000

7438Tom Beaso n, General Counsel

7443Department of Environmental Protection

7447The Douglas Building, Mail Station 35

74533900 Commonwealth Boulevard

7456Tallahassee, Florida 32399 - 3000

7461Lea Crandall, Agency Clerk

7465Department of Environmental Protection

7469The Douglas Building, Mail Stati on 35

74763900 Commonwealth Boulevard

7479Tallahassee, Florida 32399 - 3000

7484Liz Cloud, Program Administrator

7488Administrative Code

7490Department of State

7493R.A. Gray Building, Suite 101

7498Tallahassee, Florida 32399

7501F. Scott Boyd, Executive Director and

7507General Counsel

7509Joint Administrative Procedures Committee

7513120 Holland Building

7516Tallahassee, Florida 32399 - 1300

7521NOTICE OF RIGHT OF JUDICIAL REVIEW

7527A party who is adversely affected by this Final Order is

7538entitled to judicial review pursuant to Section 120.68, Florida

7547S tatutes. Review proceedings are governed by the Florida Rules

7557of Appellate Procedure. Such proceedings are commenced by

7565filing the original notice of appeal with the Clerk of the

7576Division of Administrative Hearings and a copy, accompanied by

7585filing fees prescribed by law, with the District Court of

7595Appeal, First District, or with the District Court of Appeal in

7606the Appellate District where the party resides. The notice of

7616appeal must filed within 30 days of rendition of the order to be

7629reviewed.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 09/08/2011
Proceedings: BY ORDER OF THE COURT: Upon consideration of the status report filed September 22, 2011, this proceeding is hereby dismissed filed.
PDF:
Date: 06/29/2011
Proceedings: BY ORDER OF THE COURT: Appellant's request for continued abeyance, filed June 10, 2011, is granted in part filed.
PDF:
Date: 06/03/2011
Proceedings: Second Amended Invoice for the record on appeal mailed.
PDF:
Date: 05/25/2011
Proceedings: Amended Invoice for the record on appeal mailed.
PDF:
Date: 05/25/2011
Proceedings: 2nd Supplemental Index (of the Record sent to the parties of record filed.
PDF:
Date: 02/22/2011
Proceedings: Letter to Claudia Llado from Kelly Russell regarding Index and Supplement filed.
PDF:
Date: 01/28/2011
Proceedings: Supplemental Index (of the Record) sent to the parties of record filed.
PDF:
Date: 01/18/2011
Proceedings: BY ORDER OF THE COURT: Appellants' motion to abate appeal, filed January 12, 2011, is granted, Further proceedings herein are stayed through and including June 1, 2011 filed.
PDF:
Date: 12/30/2010
Proceedings: Index (of the Record) sent to the parties of record.
PDF:
Date: 12/30/2010
Proceedings: Invoice for the record on appeal mailed.
PDF:
Date: 12/22/2010
Proceedings: Petitioners' Notice of Filing List of Documents Constituting Record on Appeal filed.
PDF:
Date: 12/08/2010
Proceedings: BY ORDER OF THE COURT: Ordered that Appellant/Petitioner forward to the clerk of this Court within 20 days the filing fee filed.
PDF:
Date: 12/08/2010
Proceedings: Acknowledgment of New Case, First DCA Case No. 1D10-6399 filed.
PDF:
Date: 12/03/2010
Proceedings: Notice of Appeal filed and Certified copy sent to the District Court of Appeal this date.
PDF:
Date: 11/04/2010
Proceedings: DOAH Final Order
PDF:
Date: 11/04/2010
Proceedings: Final Order (hearing held August 2-5, 24-25, and September 20, 2010). CASE CLOSED.
PDF:
Date: 10/14/2010
Proceedings: Letter to Judge Maloney from W. Thompson regarding proposed final order filed.
PDF:
Date: 10/07/2010
Proceedings: Department's Proposed Final Order filed.
PDF:
Date: 10/07/2010
Proceedings: Proposed Final Order filed.
Date: 09/24/2010
Proceedings: Transcript of Proceedings (Volume XI) filed.
PDF:
Date: 09/21/2010
Proceedings: Order (denying Respondent' motion to dismiss).
Date: 09/20/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/20/2010
Proceedings: Order of Consolidation (DOAH Case Nos. 10-5348RU, 10-6205RU, and 10-8197RU).
PDF:
Date: 09/20/2010
Proceedings: Petitioners' Respnse to Department's Motion to Dismiss filed.
PDF:
Date: 09/17/2010
Proceedings: Response of Petitioner Kershaw Manufacturing Company, Inc., to Respondent Dep and Board of Trustee's First Request for Production of Documents filed.
PDF:
Date: 09/14/2010
Proceedings: Respondents DEP's and Board of Trustee's First Request for Production of Documents to Petitioner, Kershaw Manufacturing Company filed.
PDF:
Date: 09/09/2010
Proceedings: Notice of Continued Hearing (hearing set for September 20, 2010; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 09/09/2010
Proceedings: Order Following Scheduling Conference.
Date: 09/09/2010
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 09/08/2010
Proceedings: Petition to Intervene (of MACLA LTD II, Limited Partnership; H. Joseph Hughes as Trustee of the Betty Price Hughes Qualified Vacation Residence Trust; Kershaw Manufacturing Company, Inc.; Keyser Properties, LLC; Destin, LLC; Paul Blake Sherrod, Jr. and Cindy M. Sherrod; Blossfolly, LLC; 639 Gulfshore, LLC; and Laura Dipuma-Nord) filed.
PDF:
Date: 09/08/2010
Proceedings: Amended Notice of Teleconference Hearing filed.
PDF:
Date: 09/08/2010
Proceedings: Notice of Teleconference Hearing filed.
PDF:
Date: 09/03/2010
Proceedings: Order (on Petitioners letter regarding scheduling of a continuation of hearing for the cross-examination of Petitioners).
PDF:
Date: 09/02/2010
Proceedings: Petitioners' Notice of Filing of Related Petition for Formal Administrative Hearings with the Department of Environmental Protection filed.
PDF:
Date: 09/02/2010
Proceedings: Petitioners' Notice of Filing of Related Petition for Formal Administrative Hearings with the Department of Environmental Protection filed.
PDF:
Date: 09/02/2010
Proceedings: Department's Response to Petitioners' Letter Regarding Proposed Hearing Dates filed.
PDF:
Date: 08/31/2010
Proceedings: Department's Response to Petitioners' Motion for Sanctions filed.
PDF:
Date: 08/31/2010
Proceedings: Holiday Isle Intervenors' Consolidated Response to Petitioners' Motion for Sanctions and Motion for Attorney's Fees and Costs filed.
PDF:
Date: 08/31/2010
Proceedings: Okaloosa County's Response to Petitioners' Motion for Sanctions filed.
PDF:
Date: 08/30/2010
Proceedings: Notice of Appearance (of K. Russell; filed in Case No. 10-008197RU).
PDF:
Date: 08/30/2010
Proceedings: Letter Judge Maloney from D. K. Safriet regarding proposed continued hearing dates filed.
PDF:
Date: 08/27/2010
Proceedings: Notice of Filing Summary of Major Points of Janet Llewellyn's Deposition Testimony and Response to Petitioners' Summary filed.
PDF:
Date: 08/27/2010
Proceedings: Petitioner's Exhibtis (exhibits not available for viewing) filed.
Date: 08/24/2010
Proceedings: CASE STATUS: Hearing Partially Held; continued to date not certain.
PDF:
Date: 08/24/2010
Proceedings: Order of Consolidation (DOAH Case Nos. 10-0515, 10-0516, 10-5348RU, 10-6205RU, and 10-8197RU).
PDF:
Date: 08/23/2010
Proceedings: Order of Assignment.
PDF:
Date: 08/23/2010
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Scott Boyd and the Agency General Counsel.
PDF:
Date: 08/23/2010
Proceedings: Petition for an Administrative Determination Concerning Unadopted Rules filed.

Case Information

Judge:
DAVID M. MALONEY
Date Filed:
08/23/2010
Date Assignment:
08/23/2010
Last Docket Entry:
09/08/2011
Location:
Tallahassee, Florida
District:
Northern
Agency:
Department of Environmental Protection
Suffix:
RU
 

Counsels

Related Florida Statute(s) (12):