10-000521EF Department Of Environmental Protection vs. David H. Fort And Claudia A. Fort Status: Closed Recommended Order on Wednesday, September 29, 2010.

Summary: Petitioners proved that Respondents built a dock and boathouse that included structures and uses that were not water-dependent, which was contrary to the terms of the permit and sovereignty lands lease.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and BOARD OF )

TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND , )

)

Petitioner s , ) Case No. 10 - 0521EF

)

vs. )

)

DAVID H. FORT AND CLAUDIA A. )

FORT , )

)

Respondent s . )

)

RECOMMENDED ORDER

The final hearing in this case was held on June 22, 2010,

in St. Augustine, Florida, before Bram D. E. Canter,

Administrative Law Judge of the Division of Administrative

Hearings ("DOAH").

APEARANCES

For Petitioners: Christine M. Francescani, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

For R espondents: Wayne E. Flowers, Esquire

Lewis, Longman and Walker, P.A.

245 Riverside Avenue, Suite 150

Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues in this case are whether Respondents, David H.

Fort and Claudia A. Fort, violated certain statutes and rules of

Petitioners, Department of Environmental Protection

("Department") and Board of Trustees of the Internal Improvement

Trust Fund ("Trustees"), related to the construction of a dock

and boathouse and the use of sovereignty submerged lands, as

alleged in the Amended Notice of Violation and Orders for

Corrective Action ("Amended NOV") and, if so, whether the

administrative fines, investigative costs, and corrective

actions sought by Petitioners should be imposed a gainst

Respondents.

PRELIMINARY STATEMENT

On October 21, 2009, the Department issued a five - count NOV

against Respondents, charging them with violations of law

associated with a dock and boathouse constructed by Respondents.

Respondents filed a Petition for Administrative Hearing to

challenge the NOV, which the Department dismissed with leave to

file an amended petition. Respondents filed an amended

petition , which the Department referred to DOAH to conduct an

evidentiary hearing pursuant to Section 120. 57(1), Florida

Statutes (2009). 1/ Before the final hearing and without

objection, Petitioners filed an Amended NOV.

At the final hearing, Petitioners presented the testimony

of Michael Savage; Scott Cannard, accepted as an expert in

architecture and buil ding design; and Mathew Kershner.

Petitioners' Exhibits 1 through 31 were admitted into evidence.

Respondents presented the testimony of Eric Calkins, David Fort,

and Michael Savage. Respondents also presented the deposition

testimony of Tracy Schilling . Respondents' Exhibits 1 through 8

were admitted into evidence. Joint Exhibits 1 through 4 were

admitted into evidence. Official recognition was taken of

Florida Administrative Code Chapters 18 - 14, 18 - 21, and 62 - 302.

The one - volume Transcript of the f inal hearing was filed

with DOAH. The parties submitted proposed recommended orders

that were carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state agency charged with the

power an d duty to administer and enforce the provisions of

Chapter 403, Florida Statutes, and the rules promulgated in

Florida Administrative Code Title 62.

2. The Trustees are responsible for state - owned

sovereignty submerged lands and ensuring that such lands are

managed for the benefit of the citizens of Florida pursuant to

Chapter 253, Florida Statutes, and the rules promulgated in

Florida Administrative Code Title 18.

3. The Department performs all staff duties and functions

for the Trustees related to the administration of state lands.

See § 253.002, Fla. Stat.

4. David and Claudia Fort own property located at 7875 A1A

South, St. Augustine, St. Johns County, Florida. The property

is located adjacent to the Matanzas River, a part of the

Intracoastal Wat erway.

5. The Trustees own the lands lying below the mean high

water line of the Matanzas River.

The Permit and Lease

6. Harbor Engineering (ÐHarborÑ), a marine engineering

firm, acted as Respondents' agent in preparing plans and

applying for the permi t and lease to construct a dock and

boathouse at the property.

7. Harbor prepared and submitted to the Department five

sketches or drawings showing various layouts, cross sections,

and elevations of the proposed dock and boathouse. These

drawings were m ade a part of the permit and became conditions of

the permit.

8. The permit drawings show one large covered slip, two

smaller covered slips for mooring of jet skis, and a two - level

boathouse. Although some of the elevations do not show walls,

it is appa rent that this was for the purpose of showing interior

areas, such as the slips.

9. Although difficult to see, one drawing indicate s a

doorway on the lower level.

10. The elevations show window openings or "cutouts" in

the walls of the boathouse, but d o not indicate framed window

panes. The drawings do not create a necessary conclusion that

the cutouts are intended to be finished with framed window

panes.

11. On January 13, 2004, the Department issued

Environmental Resource Permit and Sovereign Subme rged Lands

Authorization No. 55 - 216127 - 002 - ES ("permit"), which authorized

Respondents to construct a dock and boathouse in the Mantanzas

River adjacent to Respondents' property.

12. General Condition (a) of the permit states:

All activities shall be imp lemented as set

forth in the plans, specifications and

performance criteria as approved by this

permit. Any deviation from the permitted

activity and the conditions for undertaking

that activity shall constitute a violation

of the permit.

13. On Februa ry 24, 2004, the Trustees issued Sovereignty

Submerged Lands Lease No. 550034552 ("lease") to Respondents,

authorizing the use of sovereignty submerged lands for a 3 - slip

docking facility and boathouse "as shown and conditioned" in the

Department permit, w hich was incorporated into and made a part

of the lease. 2/

14. Paragraph 1 of the lease states that the dock and

boathouse are "exclusively to be used for mooring of

recreational vessels in conjunction with an upland single - family

residence."

15. Parag raph 7 of the lease states in pertinent part:

This lease is given to the Lessee to use or

occupy the leased premises only for those

activities specified herein and as

conditioned by the Department of

Environmental Protection, Environmental

Resource Permit. The Lessee shall not

change or add to the approved use of the

leased premises as defined herein . . .,

shall not change activities in any manner

that may have an environmental impact that

was not considered in the original

authorization . . . without fir st obtaining

. . . the Lessor's written authorization in

the form of a modified lease.

16. Paragraph 26 of the lease states that the lessee shall

ensure that no "structures whose use is not water - dependant

shall be erected or conducted over sovereignty submerged lands

without prior written consent from the Lessor."

17. The term "water dependent activity" is defined in

Florida Administrative Code Rule 18 - 21.003(71):

" W ater dependent activity " means an activity

which can only be conducted on, in, over, o r

adjacent to water area because the activity

requires direct access to the water body or

sovereign submerged lands for

transportation, recreation, energy

production or transmission, or source of

water, and where the use of the water or

sovereign submerged lands is an integral

part of the activity.

18. The lease was issued for a term of five years. It

expired on January 12, 2009.

Enforcement History

19. Respondents began construction of the dock and

boathouse in February 2004.

20. A Department emplo yee, Michael Savage, inspected the

dock and boathouse on June 8, 2004, while construction was in

progress. Savage said he was responding to an anonymous

compla i nt about Respondents' dock and boathouse, but Savage did

not explain the nature of the complain t.

21. Savage had the permit drawings with him during the

inspection. The dock pilings were in place as well as the

"shell" of the boathouse. The structure had some cutouts for

windows, but no windows with panes were installed. Savage

measured the str ucture.

22. Savage did not see anything during his June 8, 2004 ,

inspection that caused him to believe the structure was not

being constructed in compliance with the permit, except that a

copy of the permit had not been posted at the site as required

by the permit.

23. Savage said he called Respondents , left a voice

message , and talked to the builder. The Department's on - line

enforcement record for the June 8, 2004 , inspection indicates

that a call was made and a message was left: "Need to have

permit posted/erosion control in place."

24. Savage and another Department employee inspected the

dock and boathouse again on July 9, 2004. Savage had the permit

drawings with him during this second inspection.

25. Three outside walls were in place and the second level

of the boathouse was under construction. No window framing or

glass had been installed. An overhang, extending over the

northwest corner of the structure, was in place.

26. Savage had some concern about whether the locations of

the window cutouts were in compliance with the permit. In all

other respects, he thought that the construction was in

compliance.

27. The structure shown in the photographs taken on

July 9, 2004 , looks like a small house. It does not look like a

structure intende d only to provide shelter to a boat slip.

28. The Department did not communicate with Respondents

about the July 9, 2004 , inspection.

29. The Department's on - line enforcement record for the

July 9, 2004 , inspection includes the entry "In compliance."

30. General Condition (j) of the permit requires that

within 30 days after completion of construction of the permitted

system, the permittee must submit a written statement of

completion using an As Built Certification Form ("as - built").

On the as - built, the permittee is required to note and explain

any Ðsubstantial deviations."

31. Instead of submitting a single as - built following the

completion of the dock and boathouse, Respondents submitted

three as - builts. David Fort said his purpose was to keep t he

Department informed about the progress of the project.

32. On September 8, 2004, the Department received the

first of Respondent's as - builts. On the as - built form, David

Fort indicated that the work was substantially completed.

Although Fort did not intend to mislead the Department, the

construction was not substantially completed at that time. A

substantial amount of work remained to be done.

33. Savage and another Department employee inspected the

dock and boathouse on September 14, 2004. Savag e had the permit

drawings with him for this inspection.

34. The boathouse was not changed much from its appearance

in July 2004. It had no windows or doors. Savage believed that

the project was in compliance with the permit and later made a

note to tha t effect on a sheet containing three photographs that

were taken during the inspection. The Department's on - line

enforcement record for the September 14, 2004 , inspection

indicates that Savage met with the builder and includes the

entries "In Compliance" and "Built as Permitted."

35. Matthew Kershner, Compliance Enforcement Manager for

the Department, accompanied Savage on one of the inspections of

the dock and boathouse. Kershner placed a telephone call to

David Fort and said his purpose in calling was to respond to a

complaint from a neighbor "about a large dock being

constructed."

36. Kershner told Fort that Fort could not "climatize" the

boathouse. Kershner did not explain at the final hearing what

he meant by the term "climatize," nor did he give any other

details about his conversation with Fort. It is reasonable to

infer from the evidence, however, that Kershner meant that Fort

was not permitted to provide artificial heating and air -

conditioning in the boathouse.

37. Fort called Kershner late r and asked if he could

install fans and Kershner told Fort that fans would be

acceptable.

38. It is reasonable to infer from the photographic

evidence, alone, that Kershner knew in September 2004 that the

apparent plan of construction was to at least pa rtially enclose

the boathouse. However, Kershner told Fort that turning the

dock into a residence or "enclosing it" was not permitted.

39. The only reasonable meaning to ascribe to a statement

that a structure cannot be enclosed is that there must be so me

permanent, unobstructed way to pass in and out of the structure.

A room surrounded by walls, with a door, is an enclosed

structure.

40. In November 2004, the first windows were installed in

the boathouse. The windows were specially made to withstand

severe weather. Respondents paid $120,000.00 for the windows.

41. On January 7, 2005, the Department received the second

as - built from Respondents. Hand - written on the form is Ðwindows

installed 1 - 6 - 05.Ñ

42. Another Department employee, Tracy Schill ing,

inspected the dock and boathouse in January 2005. Schilling

said the inspection was in response to a complaint from a

neighbor that the dock was "extremely large" and that it was

blocking the neighbor's view.

43. Schilling reviewed the permit drawi ngs before her

inspection. The construction was still incomplete. There was

framing work underway on the first floor interior of the

boathouse. Schilling said it was apparent from the framing that

the boathouse would have "separate rooms." Schilling be lieved

that the dock and boathouse were in compliance with the permit.

44. On April 13, 2005, the Department received the third

as - built from Respondents. On June 28, 2005, Schilling and

another Department employee inspected the dock and boathouse

again . Photographs taken during the inspection show windows

were installed. Framing was completed in the upstairs portion

of the structure, creating two rooms, and interior walls on the

first floor were finished. The rooms were at least partially

furnished w ith chairs, tables, and a lamp.

45. During the June 2005 inspection, Schilling observed a

fiberglass shower stall, still in its box, on the dock.

Schilling believed that the installation of a shower stall would

violate the prohibitions in the permit and lease against

structures that were not water - dependent . The Department's

notes for the June 2005 inspection indicate ÐMinor Out - of -

compliance.Ñ

46. Schilling said she did not consider the windows to be

out of compliance because window openings were sho wn on the

permit drawings.

47. On the first sheet of photographs taken during the

June 2005 inspection (Respondents' Exhibit 3B), someone has

written, "This is sliding over into non - water dependent category

- Let's talk." However, the record does not in clude any

explanation of this handwritten comment.

48. Schilling sent a letter to Respondents on August 29,

2005, informing Respondents that an ÐitemÑ was found to be non -

compliant with Condition 26 of RespondentsÓ permit that

prohibits structures whose use is not water - dependent and that

such structures must be removed within 30 days. The letter did

not identify the structure that was not water - dependent .

49. On September 7, 2005, David Fort called Schilling

about the August 28 letter. Schilling told Fort that the ÐitemÑ

referred to in the letter was the shower stall. She told Fort

that plumbing and running water w ere not allowed. Fort told

Schilling that he was not going to install the shower.

50. In February or March, 2006, Schilling called Davi d

Fort to request permission for Schilling and some Department

employees from the Division of State Lands in Tallahassee to

inspect the dock and boathouse. Schilling said State Lands

employees occasionally make site visits to inspect unusual docks

and mar inas "that may have issues." She suggested the

inspection of Respondents' boathouse because it was the "Taj

Mahal of docks."

51. The inspection was conducted by Schilling and three

other Department employees. Schilling had a copy of the lease

with her. The exterior construction of the boathouse was

complete and the interior work was substantially complete.

Schilling believed the structure was built in compliance with

the permit.

52. Respondents d id not submit an as - built to reflect the

final constru ction of the dock and boathouse.

53. The Department's enforcement action arose as a result

of Savage's September 3, 2009 , inspection of the dock and

boathouse. It was during this inspection when Savage first

became aware of the enclosed rooms of the boa thouse. He

observed a children's playroom with carpeting, lighting, an air

conditioning unit, cable for television, and shelves. These

structures and uses are not water - dependent .

5 4 . Savage observed another room in the boathouse that

contained an air condition er or dehumidifier, refrigerator,

kitchen - style cabinetry, glass - paned windows, kitchen - style sink

connected to a water supply, television, and a microwave oven.

These structures and uses are not water - dependent .

5 5 . Savage observed another roo m with a water heater and a

shower stall. The room also was being used to store cleaning

materials and personal property. These structures and uses are

not water - dependent .

5 6 . Savaged observed electrical wiring throughout the

boathouse. The Departmen t allows electrical wiring only for

water - dependent uses, such as an electric boatlift or for

emergency lighting.

5 7 . On the dock adjacent to the large mooring slip, Savage

observed a sink connected to a water supply, a glass - paned

window, and a door tha t enclosed a lower level room. Savage did

not think the sink was "representative of a fish cleaning

station." His objection to the sink was that it had more than

one basin and did not have a sign identifying it as a fish

cleaning station.

5 8 . Also on t he dock in the area of the slips, Savage

observed music speakers installed on the wall, doors enclosing

rooms, and a closet which was being used to store fishing reels

and gear.

59 . There is a pump stored next to the boat lift in the

boat storage area th at pumps water out of the Matanzas River

into a tank for keeping live bait.

6 0 . Respondents admitted that they had installed

structures at the dock and boathouse that were not authorized by

the permit. These unauthorized structures are a stairway and

ra mp to the beach, a floating platform on pilings with a metal

gangway, and an "overhang" (that portion of the upper level deck

on the north side of the boathouse that extends 1.5 feet beyond

the outer wall of the lower level).

6 1 . The Department incurred $1,874.00 in investigative

costs for investigation and enforcement activities associated

with Respondents' dock and boathouse. Respondents did not

dispute these costs. They are reasonable costs.

Detrimental Reliance

6 2 . Respondents claim that they reli ed on the Department's

representations following the Department's inspections of the

construction and would not have installed the doors, windows, or

other features in the structure if the Department had told

Respondents that these structures were not auth orized by the

permit.

6 3 . The permit drawings indicate a boathouse with areas

that would be semi - enclosed. However, th e permit and lease

limit this b oathouse to a structure for the mooring and

protection for boat s . The boathouse is not supposed to serv e as

a residence or a clubhouse. It was unreasonable for Respondents

to believe that the permit authorized enclosed rooms and

amenities typical of an upland residence with many features that

are not water - dependent .

6 4 . Respondents presented no evidence to show that similar

boathouses have been authorized by Department permit.

6 5 . David Fort's actions showed that he had a complete

disregard for the warnings and instructions that he received

from the Department. He was told that he could not "climatize "

the boathouse. He was told that he could not enclose the

boathouse. He was told that he could not install the shower

stall. He was told that he could not install plumbing or

running water. He was told that he could not use the dock and

boathouse for activities that were not water - dependent . Yet he

did all of these things anyway. He built certain structures,

such as the floating dock and gangway, which he knew were not

authorized by the permit. It is in this context of Fort's

apparent intent to do w hatever he wanted with the boathouse, no

matter what the Department said, that Fort's claims of

detrimental reliance must be considered.

6 6 . The more persuasive evidence does not show that

Respondents relied to their detriment on any representation by a

Department employee, except for the installation of fans.

David Fort asked a direct question about whether he could

install fans, before the fans were installed, and was told by

the Department that he could install fans. All of the other

structures that are the subject of this case were installed

without a prior discussion with the Department or are contrary

to instructions given by the Department.

6 7 . Respondents point out several times that certain

structures were in place before a Department inspecti on, facts

which Respondents believe support their arguments about the

structures being in compliance with the permit, because the

Department saw the structures but did not object to them .

Although these facts are relevant to the determination of

whether t he structures were, in fact and in law, in compliance

with the permit , they undermine Respondents' claim of reliance.

6 8 . Respondents' claim of reliance is not based on any

affirmative acts of the Department , but on the Department 's

silence. The Departm ent's silence caused Respondents to believe

that the Department would not take enforcement action, but the

evidence does not show that Respondents relied on the

Department's silence to construct or install any of the disputed

structures.

CONCLUSIONS OF LAW

69 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding under Sections 120.569, 120.57(1), 253.04(2), and

403.121, Florida Statutes.

7 0 . Section 403.161(1)(b), Florida Statutes, makes it a

violation of Chapter 403 to fail to comply with any rule, order,

or permit issued by the Department.

7 1 . Section 403.121, Florida Statutes, authorizes the

Department to commence an administrative action to enforce the

requirements of Chapter 403, Fl orida Statutes.

7 2 . If the Department has reason to believe a violation

has occurred, it may institute an administrative proceeding to

establish liability, to recover damages, and to order the

prevention, abatement, or control of the conditions creating the

violation. See § 403.121(2)(a) and (b), Fla. Stat.

7 3 . Section 253.77, Florida Statutes, provides that a

person may not commence construction or other activity involving

the use of sovereign or other lands of the state until the

person has received the required lease, license, easement, or

other form of consent authorizing the proposed use.

7 4 . Sections 253.04(2) , Florida Statutes , authorizes the

Trustees to take enforcement against persons who have knowingly

refused to comply with or willfully vio lated the provisions of

Chapter 253.

7 5 . Under Florida Administrative Code Rule 18 - 14.002, a

person is subject to a fine of up to $10,000 for each offense

constituting a knowing refusal to comply or a willful violation

of the provisions of Chapter 253, F lorida Statutes. Rule 18 -

14.002(4) provides that fines shall be $1,000 to $2,500 for the

first offense, and $1,000 to $10,000 for the second and

subsequent offenses.

7 6 . Rule 18 - 21.004(1)(g) provides that activities on

sovereignty lands shall be limited to water - dependent activities

unless the Trustees determine that it is in the public interest

to allow an exception. The Trustees made no public interest

determination regarding any of the disputed structures at

Respondents' dock and boathouse.

7 7 . Pet itioners have the burden to prove by a

preponderance of the evidence that Respondents have violated the

law as charged in the Amended NOV. See § 403.121(d), Fla. Stat.

Count I

7 8 . Under Count I of the Amended NOV, the Department

charges Respondents wi th failing to comply with General

Condition (a) of the permit by failing to construct the dock and

boathouse in conformance with the terms and conditions of the

permit.

79 . The Amended NOV identifies numerous structures and

activities which Petitioners c ontend were not authorized by

Respondents' permit or lease. Respondents admitted that the

following structures were not authorized by the permit or lease:

(a) A stairway and ramp to the beach

(b) A floating platform with attached metal

gangway

(c) An "overhang" of the upper level deck

on the north side of the boathouse beyond

the outer wall of the lower level

8 0 . Petitioners contend that the following additional

structures and activities were not authorized by the permit or

lease:

(a) A storage cl oset for fishing tackle at

the entrance to the boathouse

(b) Music speakers

(c) A water pump

(d) An enclosed storage room with a shower

stall

(e) Enclosed room with television, cable

box and hookups, DVD player, refrigerator,

sink, cabinets, and co untertops

(f) Air - conditioning/heating units

(g) An enclosed "children's room" with

shelving

(h) Electrical hardware and infrastructure

for activities which are not water - dependent

(i) Windows with window panes

(j) Doors enclosing the boathouse

8 1 . Petitioners proved by a preponderance of the evidence

that Respondents failed to comply with General Condition (a) of

the permit.

8 2 . Petitioners proved by a preponderance of the evidence

that Respondents constructed or installed the structures

ide ntified in paragraphs 79 and 8 0 , above, which was not

authorized by the permit.

8 3 . Petitioners do not seek an administrative fine under

Count I.

Count II

8 4 . Under Count II of the Amended NOV, the Trustees

charge Respondents with failing to comply wi th Paragraph 7 of

the lease by constructing the stairway and ramp to the beach,

the floating platform with attached metal gangway, and the

"overhang" of the upper level deck.

8 5 . Petitioners proved by a preponderance of the evidence

that Respondents will fully violated Paragraph 7 of the lease by

constructing the se structures, which were not authorized by the

lease.

8 6 . Petitioners demand that Respondents pay an

administrative fine of $1,500 for the violation of law charged

in Count II. The proposed fin e is fair and reasonable.

Count III

8 7 . Under Count III of the Amended NOV, the Trustees

charge Respondents with failing to comply with Paragraph 26 of

the lease by constructing permanent and floating structures over

sovereignty submerged lands without p rior consent from the

Trustees.

8 8 . Petitioners proved by a preponderance of the evidence

that Respondents willfully violated Paragraph 26 of the lease by

constructing the structures identified in paragraph 79 above,

which were not authorized by the leas e.

89 . Petitioners demand that Respondents pay an

administrative fine of $1,500 for the violation of law charged

in Count III. The proposed fine is fair and reasonable.

Count IV

9 0 . Under Count IV of the Amended NOV, the Trustees charge

Respondents wi th failing to comply with Paragraph 26 of the

lease by using the dock and boathouse for activities that are

not water - dependent .

9 1 . Petitioners proved by a preponderance of the evidence

that Respondents willfully violated Paragraph 26 of the lease by

us ing the dock and boathouse for activities that are not water -

dependent , as described in paragraph 8 0 , above.

9 2 . Petitioners demand that Respondents pay an

administrative fine of $2,000 for the violation of law charged

in Count IV. The proposed fine is fair and reasonable.

Count V

9 3 . Under Count V of the Amended NOV, the Department

charges Respondents with the responsibility to pay the

Department's investigative costs of $1,874.98.

9 4 . The Department proved by a preponderance of the

evidence that it incurred investigative costs of $1,874.98 and

that this amount is reasonable under the circumstances. 3/

Equitable Estoppel

9 5 . Respondents contend that circumstances exist that

warrant the application of the doctrine of equitable estoppel to

prevent Pet itioners from requiring the removal of these

structures and from assessing penalties or fines for the

construction or installation of these structures. In support of

their contention, Respondents cite Reedy Creek v. Department of

Environmental Protection , 486 So. 2d. 642 (Fla. 1st DCA 1986),

in which the court identified the elements of equitable

estoppel:

(1) a property owner's good faith reliance

on

(2) some act or omission of the government

and

(3) a substantial change in position or the

incurring of excessive obligations and

expenses so that it would be highly

inequitable and unjust to destroy the right

acquired.

Id. at 646. The court went on to state that "[e]quitable

estoppel will apply against a state agency, however, only upon a

showing of ex ceptional circumstances." Id. at 647.

9 6 . I n Alachua County v. Cheshire , 603 So. 2d 1334, 1337

(Fla. 1st DCA 1992), the court held that Ð[i]n addition to the

usual elements of estoppel, a party seeking to invoke estoppel

against the government must esta blish affirmative conduct by the

government going beyond mere negligence.Ñ

9 7 . Respondents failed to prove the elements that are

necessary to apply the doctrine of equitable estoppel in this

case.

9 8 . Respondents refer repeatedly to the actions of the

Department's inspectors as "determinations" that the dock and

boathouse were in compliance with the permit. The thoughts of a

Department inspector about whether a structure is in compliance

with a permit do not amount to agency action comparable to the

is suance of a permit or other agency order. If a Department

employee believes a structure is in compliance, that belief will

be relevant in a legal proceeding to support an argument that

the structure is, in fact and in law, in compliance with a

permit, but the Department is not automatically bound by such a

belief or "determination" of its employee.

99 . The most important representations and determinations

made by Petitioners were set forth as terms and conditions of

the permit and lease. These orders cl early prohibited

structures, activities, and uses of the dock and boathouse that

are not water - dependent .

10 0 . Faintly indicated in one permit drawing, but not

otherwise described in the permit, is a single door way on the

lower level of the boathouse. R espondents' belief that a door

was authorized by the permit was not unreasonable. Neither was

it unreasonable for the Department to mis apprehend the depiction

of a door way . Standing alone, the misunderstanding about the

door way does not create a basis fo r estopping Petitioners from

requiring the removal of the door, because removal of the door

would involve minimal expense and would not be otherwise unjust

under the circumstances.

Corrective Actions

10 1 . In the Amended NOV, Petitioners demand, among oth er

things, that Respondents apply to renew the lease, pay all

unpaid lease fees, remove the structures that are not water -

dependent , and cease all activities and uses that are not water -

dependent . The corrective actions demanded in the Amended NOV

are rea sonable demands that should be imposed, with the

exceptions stated below.

10 2 . The drawings show window cutouts without framing for

panes. It was reasonable for Respondents to believe that these

openings could be covered with glass. The Department did not

dispute Respondents' testimony about the cost of the windows,

which was substantial. As noted by Respondents, there is not

much difference between a solid wall of wood and a solid wall of

wood and some glass. Although not clearly authorized by the

pe rmit, Respondents should not be required to remove the

windows.

10 3 . Respondents should not be required to remove

electrical wiring to the dock and boathouse for water - dependent

uses and activities. Although the electric pump and tank for

bait fish are not depicted or described in the permit,

Respondents should not be required to remove them because they

are integral to water - dependent activities. Likewise, because

e lectrical lighting to allow safe use of the dock and boathouse

for water - dependent activ ities at night is integral to the

water - dependent activities , Respondents should not be required

to remove installed lighting.

10 4 . Respondents should not be required to remove fans

because they were installed after the Department informed

Respondents th at the installation of fans was acceptable.

10 5 . Although the sink adjacent to the wet slip is not

depicted or described in the permit, Respondents should not be

required to remove the sink because it can be used as a fish

cleaning station, which is a wa ter - dependent structure.

10 6 . Although the closet for fishing gear is not depicted

or described in the permit, Respondents should not be required

to remove the closet because it s use is integral to a water -

dependent activity .

Disposition

10 7 . Because t he Department does not seek an

administrative penalty under the Amended NOV, it retains

authority to issue a final order on Counts I and V. See

§ 403.121(2)(d), Fla. Stat. The Trustees have final order

authority on Counts II through IV. See § 120 .57(1)(k), Fla.

Stat.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioners issue Final Orders that

impose the administrative fines and order the corrective actions

set forth in the Amended Notic e of Violation and Orders for

Corrective Action, dated June 1, 2010, with the modifications

stated above.

DONE AND ENTERED this 29th day of September , 2010 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Admin istrative Law Judge

Division of Administrative Hearings

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 Hearin gs

this 29th day of September , 2010 .

ENDNOTES

1/ All references to the Florida Statutes are to the 2009

codification.

2/ February 24, 2004, is the date of the last signature on the

lease.

3/ In the Amended NOV, Petitioners cite Section 403.141(1),

Florida Statutes, as authority for the recovery of the

Department's investigative costs. This statute, however, is

entitled "Civil liability," and its application to this

proceeding is not apparent.

COPIES FURNISHED :

Wayne E. Flowers, Esquire

Lewis, Lo ngman & Walker, P.A.

245 Riverside Avenue, Suite 150

Jacksonville, Florida 32202

Christine M . Francescani, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Stop 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Cle rk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Mi mi Drew , Secretary

Department of Environmental Protection

Douglas B uilding , Mail Station 35

3900 Commonwealth Boulev ard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.