10-002334 M.A.B.E. Properties, Inc. vs. Shannon Sue, Llc, Jupiter Hills Lighthouse Marina, Inc., And John And Barbara Canonico As Trustees Of The Barbara Canonico Revocable Trust, Department Of Environmental Protection, Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Thursday, November 4, 2010.

Summary: Consent Order to resolve outstanding violations by marina was not shown to be an abuse of DEP's enforcement discretion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

M.A.B.E. PROPERTIES, LLC, )

)

Petitioner , )

)

vs. ) Case No. 10 - 2334

)

SHANNON SUE, LLC, JUPITER HILLS )

LIGHTHOUSE MARINA, INC., JOHN )

AND BARBARA CANONICO, AS )

TRUSTEES OF THE BARBARA )

CANONICO REVOCABLE TRUST, )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, AND BOARD OF )

TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND, )

)

Respondent s. )

______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Divisio n of Administrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on August 18 and 19 ,

2010, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James M. Porter , Esquire

James M. Porter, P.A.

2950 Sun Trust International Center

One Southeast Third Avenue

Miami , Florida 33131 - 1712

For Respondent s : Kirk S. White , Esquire

(Department and Department of Environmental Protection

Board) 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent s: John S. Yudin, Esquire

( all others) Guy Yudin & Foster, LLP

55 East Ocean Boulevard

Stuart , Florida 34994 - 2214

(appearance on August 18 only)

STATEMENT OF THE ISSUE

The issue is whether a Consent Order executed by

Respondents on March 25, 2010 , and by the Depar tment of

Environmental Protection (Department) and the Board of Trustees

of the Internal Improvement Trust Fund (Board) on A pril 1, 2010,

is a reasonable exercise of the Department's enforcement

authority.

PRELIMINARY STATEMENT

On March 25 and April 1 , 2 010, respectively, Respondents,

who own and operate a commercial marina in Tequesta, Florida,

and the Department and Board executed a Consent Order to resolve

outstanding violations associated with the operation of the

marina. On March 31, 2010, Petitione r, M.A.B.E. Properties, LLC

(MABE), wh ich owns property immediately adjacent to the marina,

filed its Petition for Formal Administrative Hearing (Petition)

challenging the Consent Order on numerous grounds and requesting

that it be modified or set aside as being arbitrary and

capricious. The matter was referred by the Department to the

Division of Administrative Hearings on April 27, 2010, with a

req ues t that an administrative law judge conduct a formal

hearing.

By Notice of Hearing dated May 5, 2010, a f inal hearing was

scheduled on June 28, 2010, in Tequesta, Florida. By agreement

of the parties, the matter was rescheduled to August 18 - 20,

2010, in West Palm Beach, Florida. A Joint Pre - Hearing

Stipulation (Stipulation) was filed by the parties on Augus t 13,

2010.

By Order dated May 26, 2010, the Department's Motion to

Strike Portions of the Petition that sought to modify the

Consent Order, or to incorporate other alleged or known

violations in the calculation of the penalty , w as granted. By

Order dat ed August 13, 2010, three more allegations seeking to

modify the Consent Order were stricken from the Petition .

At the final hearing, Petitioner 's principal ,

Edmund Brennen, testified and presented the testimony of

Jason Andreotta, Jo s e ph Luri z , Paul A. Wi erzbicki, Leslie A.

Smith, and John J. Long, Jr., all employees in the Department's

Southeast District Office (District Office) in West Palm Beach .

Also, it offered Petitioner's Exhibits 1 - 17, 20 - 30, 33, 35, 37,

38, and 4 1 , which were received in evidence . The deposition of

Donald H. Keirn, Jr. , and deposition exhibits 13 - 39, w ere also

proffered as an exhibit for the purpose of establishing other

violations that MABE contends should have been considered by the

Department before executing the Consent Order . The Department

and Board presented the te stimony of Donald H. Keirn, Jr., a

Department Environmental Specialist III and accepted as an

expert. Also, they offered Department Exhibits 1 - 3 , which were

received in evidence. The other Respondents did not p articipate

in the hearing. Finally, the undersigned granted the

Department's Request for Official Recognition of Florida

Administrative Code Rule Chapter 62 - 780. 1

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

September 2 1 , 2010. Proposed Fin dings of Fact and Conclusions

of Law were filed by Petitioner and jointly by the Department

and Board on October 2 2 , 2010, and they have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the fo llowing findings of

fact are determined:

A . History of the Proceeding

1. A lengthy history precedes the execution of the Consent

Order and c an be summarized as follows. S hannon Sue, LLC

(Shannon Sue) is a Florida limited liability company and the

curr ent owner of property located at 18261 Southeast Federal

Highway, Tequesta, Florida , just north of the Martin County - Palm

Beach County line . The property consists of 0.482 acres , is on

the western bank of the Indian River Lagoon, and is adjacent to

the Je nsen Beach - Jupiter Inlet Aquatic Preserve, an

O u tstanding Florida Water . A commercial marina has been located

on the upland property since at least the mid or late - 1980s .

2. The Department has the power and duty to administer and

enforce Chapters 373 , 376, and 403, Florida Statutes (2009) , 2 and

the rules promulgated thereunder, including Chapter 62 - 780. The

marina lies within the District Office's r egulatory

jurisdiction.

3 . MABE is a Florida limited liability corporation with

its principal place of business in Martin County. It owns a

small parcel of property located at 18245 Southeast Federal

Highway, Tequesta, which is adjacent to , and immediately north

of , the marina. Edmund Brennen is an officer and director of

MABE and has resided at that s ite for twenty years. Besides his

residence, Mr. Brennan has two boat slips for rent and two

floors of commercial office space on the property , which is

zoned commercial/residential . Over the last twenty years, MABE

has had tenants who have historically used the dock and the

aquatic preserve for fishing, boating, and other recreational

activities. Although currently vacant, MABE plans to continue

to lease its property to residential or commercial tenants.

4 . Shannon Sue currently leases the marina prope rty to

Jupiter Hills Lighthouse Marina, Inc. (JHLM) , a Florida

corporation with its principal place of business in Martin

County . JHLM has operate d the marina since at least the 1990s.

5 . The property was owned by John and Barbara Canonico

(husband a nd wife), as Trustees of the Barbara Canonico

Revocable Trust , from 1988 until November 21, 2002, when title

was transferred to Shannon Sue. John Canonico is an officer ,

director , and registered agent of JHLM and Barbara Canonico is a

manager and register ed agent of Shannon Sue.

6 . The record reflects that a dock and slips were located

on the property for a number of years. On July 29, 1992, JHLM

applied for a wetland resource permit to expand the existing

dock to provide for additional mooring and to substantially

reconfigure the existing dock . On December 13, 1994, the

Department issued an Intent to Issue Permit No. 432170499

(Permit) to JHLM allowing the expansion of the existing dock

from 6 to 18 slips. See Petitioner's Exhibit 1. 3 The Permit was

eventually issued on July 1, 1996. See Petitioner's Exhibit 2.

The P ermit included a number of general and specific conditions,

including S pecific C onditions 8 and 12, which required the

installation of a stormwater exfiltration system to provide

treatm ent for the first inch of runoff, and prohibited any boat

maintenance or repair activities except those that were "minor"

or necessitated by "emergency conditions." There is no record

of any objection to the issuance of the permit being filed by

any per son .

7 . Although authorized to do so, for unknown reasons, JHLM

did not make the changes authorized by the P ermit. In March

1998, it submitted a new application for a Standard General

Environmental Resource Permit (ERP) seeking to expand the number

of we t slips from six to twelve and to reconfigure the existing

dock. See Petitioner's Exhibit 3. One - half of the slips would

be used by powerboats while t he other six would be for sailboat

mooring only. Under the new permit, the applicant would be

allowed t o remove the existing docks and construct a new access

dock and terminal platform and add six new finger piers . On

August 16, 1999, the Department approved the application and

issued Standard General ERP No. 43 - 0114838 - 001 . See

Petitioner's Exhibit 4. L ike Specific Condition 8 in the 1996

permit, Specific Condition 14 was included in the new permit for

the purpose of improving water quality and required the

applicant to "install a stormwater exfiltration system" to

"provide treatment for [the first inch of runoff from] all paved

surfaces on the property." The system was to be constructed and

certified as complete by a registered professional engineer

before the permit became effective; it was to be cleaned monthly

or after major rainfall events and inspe cted annually by a

professional engineer; and annual reports were to be filed each

year by th at engineer . Also, Specific Condition 24 prohibited

any boat repair work other than minor or emergency repairs .

Acting on behalf of the Board, which has the resp onsibility for

overseeing state owned lands, the Department also entered into a

five - year leas e with the Canonico Trustees (Trustees) to use

sovereign submerged lands . See Petitioner's Exhibit 5. Among

other s , Condition 1 of t he lease specifically pro hib it ed the

mooring of commercial vessels at the facility. Id. Again, the

Permit was not opposed by any third party.

8 . In 2001, Chris Baker, identified as a "purchaser of the

site" but more than likely a prospective purchaser, authorized a

firm known as E nvironmental Matters to conduct a "Phase I and

Limited Phase II Environmental Site Assessment" of the property.

The consultant's Environmental Assessment R eport (Report) , dated

June 2001, indicated , among other things, that there were

concentrations of me tals and petroleum hydrocarbons on the site ;

that some of the concentrations exceeded Department standards ;

that the soils were "contaminated throughout the Site" ; an

abandoned water well and septic tank system were on the site ;

and that a 1,000 - gallon abo veground unleaded gasoline storage

tank had been installed in 2001 without the required secondary

containment , but no leaks were observed. See Petitioner's

Exhibit 38. The report noted that during the assessment,

Mr. Canonico acknowledged that all ty pes of boat maintenance

took place on the site, including scraping boat hulls , and that

the waste was discharged (or allowed to run off) into the basin.

9 . On March 14, 2003, former counsel for MABE sent a

three - page letter to the District Office advising that since

JHLM received a permit in 1994, the marina had been operated in

a manner that constituted violations of the permit conditions

and lease. The letter described in detail what the author

perceived to be violations of the law. In addition, a copy of

the 2001 R eport was enclosed with the letter. The letter asked

that the Department initiate an enforcement action against the

marina and that the unlawful practices be halted.

1 0 . A Department memorandum dated March 28, 2003,

indicates that the let ter and R eport were reviewed by a District

employee , who considered the R eport to be incomplete in certain

respects, and that "without appropriate measurement tools and

additional information, it is not possible to state that the

site is contaminated based upon the sludge analysis." See

Petitioner's Exhibit 37. The memorandum conceded , however, that

further investigation was needed and that the report "provides

an indication of a petroleum related discharge." Id. The

memorandum recommended that JHLM be given a copy of the Report

and the D istrict Office memorandum, that JHLM su bmit a Discharge

Reporting Form pursuant to Rule 62 - 761.900(1), that the marina's

stormwater drain be cleaned, and that JHLM contact the D istrict

Office to discuss the voluntary imp lementation of Best

Management Practices for on - site operations. Id. Because the

Report "[had] no laboratory reports and no method detection

limits," the District Office d ecided n ot to conduct any follow -

up inspections of the marina property at that time .

1 1 . In response to the Department's memorandum and Report ,

o n June 3, 2003, Mr. Canonico filed a Discharge Report Form

indicating that there was "no known discharge" on the property.

He also enclosed a copy of a letter he signed on December 7,

1994, pr esumably in conjunction with his application for Permit

No. 432170499 , in which he describe d the maintenance schedule

for the facility's stormwater exfiltration system and agree d to

conform to that schedule, as generally required by Specific

C ondition 7 of the original permit . Also, on August 5, 2003,

the facility's contractor advised the District Office by letter

that "[t]he work authorized in Permit #43 - 0114834 - 001 has [been]

commenced and completed in full, with the exception of the

demolition of the fi nger pier, which we seek to remain." See

Petitioner's Exhibit 6. This was pr obably in reference to the

facility's intent to file an application to modify its 1999 ERP.

There is no indication that any further action was taken by the

Department in respons e to the MABE complaint.

1 2 . In November 2003, JHLM filed an application with the

District Office seeking to modify its 1999 ERP by allowing an

existing 4 - foot by 24 - foot finger pier to remain in place (the

1999 ERP required that it be removed) , and to in stall a

retractable wheelchair ramp to allow vessel access for wheel -

chair bound individuals . The application was unopposed. On

January 22, 2004, the Department approved the application. See

Petitioner's Exhibit 7. Except for the addition of three

spec ific conditions (32, 33, and 34) , a ll other terms and

conditions remained the same. Id. The finger pier was intended

to be used for passenger loading of rental vessels stored on the

uplands.

1 3 . Even though ownership of the property had been

transferred to Shannon Sue in 2002, o n August 2 6, 2004, the

Department, on behalf of the Board , renewed submerged land lease

43003006 with the Trustees for another ten years , or until

August 16, 2014 . See Petitioner's Exhibit 8. The renewed lease

contains the same terms and conditions as the 1999 lease ,

including the condition that the facility be restricted to

mooring recreational vessels .

1 4 . On July 3, 2008, MABE, through its former counsel ,

sent the Department a verified complaint against the marina

under Sec tion 403.412, Florida Statutes (200 8 ). See

Petitioner's Exhibit 25. The complaint sought to compel the

Department to take action to address alleged violations of the

ERP conditions and the submerged land lease. Under the statute,

an agency has 30 days a fter receipt of a complaint in which "to

take appropriate action" against the alleged violator, or the

complaining party may then institute judicial proceedings.

1 5 . Following receipt of the complaint, on July 10, 2008,

representatives of the District O ffice conducted an inspection

of the marina property. The case manager was Donald H. Keirn,

Jr., a n Environmental Specialist III , who is responsible for,

among other things, compliance enforcement in a large, heavily -

populated multi - county area . Another inspection was conducted

o n July 22, 2008 . During those visits, Mr. Keirn noted

significant evidence of major boat repairs on the premises,

freshly spilled oil, and hull scraping. In fact, Mr. C a nonico

admitted to Mr. Keirn that the facility had been per forming

major boat repairs since the original permit had been issued.

1 6 . Based on these inspections, o n July 2 9 , 2008, the

D istrict Office initiated an enforcement action by sending a

Warning Letter to the Canonicos advising them that Specific

Conditio ns 11, 14, 15, and 24 of the ERP had been violated, and

that the lease of submerged lands must be transferred to the

current owner. See Petitioner's Exhibit 9. Condition 11

required the placement of channel markers; Conditions 14 and 15

required an exfil tration system to be constructed, certified by

a professional engineer as complete as indicated on the permit

drawings, maintained for the life of the system, cleaned

monthly, and inspected by a professional engineer annually with

follow - up annual reports; and Condition 24 prohibited repairs to

vessels other than minor or emergency repairs , so as to prevent

the discharge of hazardous materials into the aquatic preserve .

The record does not show what action, if any, Respondents took

after receiving the W arn ing L etter.

1 7 . F rustrated by Respondents' inaction, and their

repeated disregard of Permit and Lease conditions over the

years, i n the fall of 2008 MABE hired an outside consult ing firm

(E Sciences , Inc. ) to collect and analyze samples of soil and

water from both the MABE property as well as Shannon Sue's

property. (Authorization to enter Shannon Sue's property was

pursuant to a court order.) The report was completed on

October 16, 2008, and concluded that since the 2001 assessment

was performed, the c oncentrations of petroleum and metals had

increased . It further concluded that the marina activities

during th ose years had adversely impacted the soil and sediment

at both the marina and MABE's adjacent property. See

Petitioner's Exhibit 37. A copy of the report was provided to

both the D istrict Office and Shannon Sue.

1 8 . After receiving the report, on November 14, 2008, the

District Office staff conducted another inspection to "identify

any potential hazardous waste material discharge(s) or source(s )

of contamination at the property." The staff found evidence of

leaking containers, an engine " bone yard " along the fence line

with the MABE property, unlabeled containers, and stains under

the fuel tank. The inspection essentially confirmed the

finding s of E Science , Inc. ; accordingly , the District Office

concluded that a Site Assessment Report (SAR) under Chapter 62 -

780 was necessary in order to determine the extent of

contaminants on the property. A SAR assesses and describes the

extent of contaminat ion and makes recommendations as to how to

address it. On February 24, 2009, t he District Office sent a

letter to the Canonicos , as registered agents for Shannon Sue

and JHLM, advising them that "contaminants may have been

released or discharged into the environment." The letter

requir ed Shannon Sue and JHLM to initiate a s ite assessment

within 60 days , and to file a S AR that complied with the

requirements of Chapter 62 - 780 no later than July 13, 2009 . See

Petitioner's Exhibit 26. The D istrict Office su bsequently

extended the due date for the SAR to October 1, 2009.

19 . By letter dated April 24, 2009, the Department also

advised the Canonicos that a n "ongoing investigation ,"

preliminary to agency action, revealed the possible mooring of

commercial ves sels at the dock on two occasions , which was

prohibited under the submerged land lease . ( Based upon visual

sightings confirmed by photographs , MABE had earlier advised the

District Office that this occurred on a frequent basis , but

subsequent inspections by the District Office resulted in only

two observations of commercial vessels at the dock . ) The letter

further reminded the Canonicos that , pursuant to Specific

Condition 24, boat repairs with the potential to discharge

pollutants or hazardous substances into the adjacent waters w ere

prohibited under the ERP. See Petitioner's Exhibit 21. As

noted above, d uring the July 2008 inspections, Mr. Canonico

admitted to Mr. Keirn that there were "multiple violations" of

that condition , including multiple dischar ges of oil and grease

associated with engine repairs.

2 0 . Assuming t hat the matter could be resolved by consent

order, o n November 18, 2009, Mr. Keirn submitted for review by

his supervisor a "Civil Penalty Authorization Southeast Florida

District," which outlined the nature of the violations observed

and proposed penalties for those violations. See Petitioner's

Exhibit 12. By now, additional violations had been observed

through more inspections, including , as noted above, the mooring

of commercial vesse ls at the marina; a failure by JHLM to

construct an " exfiltration trench" as required by the original

1996 permit, file annual reports for that system, and regularly

maintain the system; a failure to notify staff of the

commencement of construction; and a failure to maintain used oil

storage containers within secondary containment structures and

to legibly label them.

2 1 . The Department has issued a n Administrative Directive

entitled Settlement Guidelines for Civil and Administrative

Penalties (Settlemen t Guidelines) , effective July 17, 2007,

which contains guidelines that "are intended to provide a

rational, fair and consistent method for determining the

appropriate amount of civil and administrative penalties the

Department should seek from responsible parties in settling

enforcement actions." See Department Exhibit 3. They are

intended only "for internal staff guidance," and the District

Office is authorized "to deviate from these guidelines . . .

when doing so will result in better compliance and bet ter

capability for carrying out the mission of the agency." Id. at

2. Relying in part upon that document, Mr. Keirn recommended a

$27,500.00 civil penalty for violations of permit conditions ,

$2,500.00 for the lease violation, and $500.00 for investigati ve

costs, or a total civil penalty of $30,500.00. The Penalty

Rationale is found on page 3 of that exhibit. This

recommendation was approved by the District Office Director o n

December 11, 2009 , and was incorporated into a proposed consent

order . As poi nted out by Mr. Keirn, the purpose of the proposed

settlement was not to collect fines, but to restore and protect

the environment .

2 2 . By email dated January 11, 2010, Mr. Keirn provided

the Canonicos with a copy of the draft consent order. See

Petition er's Exhibit 13. He asked that they review it and be

prepared to discuss the violations and penalties the following

week. A series of emails between the parties ensued over the

next month or so for the purpose of discussing the cited

violations and relat ed penalties . Mr. Keirn's email also

advised them to "get [the SAR] in ASAP" by mail, hand - delivery,

or email. The next day, January 12, 2010, the Canonicos

submitted a SAR to the Department.

2 3 . On January 26 and February 1, 2010, the Canonicos sent

emails to Mr. Keirn providing their explanation for each

violation "in the hope of reducing the penalties outlined in the

Consent Order." See Petitioner's Exhibits 14 and 15. One

explanation for violating the prohibition against major repairs

(Specific C ondition 24) was a statement that the Canonicos

believed that engine repairs, scraping of boat hulls, and the

like were "minor" repair work. Mr. Keirn noted in an email to

his supervisor that the Canonicos' proposed "amounts are

seriously too low[,]" that "the statements are skewed to their

position," and that "[the explanations ] are not a logical reason

for reduction." See Petitioner's Exhibit 15.

2 4 . By letter dated March 29, 2010, the Department advised

the C a nonicos that the SAR submitted on Januar y 12, 2009,

contained a number of deficiencies, that additional work must be

undertaken, and that an Addendum to the SAR must be submitted

within sixty days, or by the end of May 2010. See Petitioner's

Exhibit 28.

2 5 . A round the same time that the Depart ment requested an

Addendum to the SAR, o n March 25 and April 1 , 2010, Respondents

executed a Consent Order to resolve all outstanding violations.

John and Barbara Canonico signed the Consent Order on behalf of

the non - agency Respondents.

2 6 . In general terms, t he Consent Order noted that

Respondents collectively had failed to comply with the ERP

conditions in the following respects: they failed to construct

the stormwater system in accordance with the permit; they failed

to maintain the stormwater syst em, have it inspected by an

engineer on an annual basis, or have an engineer file annual

reports; they repeatedly conducted non - minor repairs,

maintenance, and painting of vessels resulting in unauthorized

discharges of contaminants ; they failed to install channel

markers; they failed to notify the Department of the ownership

transfer to Shannon Sue; they failed to submit written notice to

the Department at least 48 hours prior to the commencement of

construction of the project ; they failed to limit the use of the

marina to the mooring of recreational vessels; and they failed

to properly contain or maintain the used oil disposal storage

containers within a secondary storage structure. See Department

Exhibit 2 at 3. In addition, the Consent Order noted that based

upon the E Science , Inc. report, there were concentrations of

total recoverable hydrocarbons in soils that would reasonably

leach into groundwater; that a polluting condition had occurred;

and that Respondents had failed to submit a SAR by the

Octob er 1, 2009 deadline . Id. at 4. Finally, the Consent Order

noted that Shannon Sue had failed to obtain the required lease

since acquiring ownership of the property in 2002. Id.

2 7 . Rather than imposing the $30,500.00 penalty originally

recommended by Mr. Keirn, a s a result of negotiations betwee n

the parties, the D epartment agreed to reduce the penalties in

the C onsent Order to $ 17, 750 .00 as settlement of the matter ,

including $500.00 in costs and expenses for investigating the

matter. The penalties w ere to be paid in installments , with the

first installment of $5,000.00 due immediately . This

installment has been paid. The Consent Order required

additional corrective action, the filing of a SAR, and the

obtaining of a lease by Shannon Sue within cert ain timeframes.

2 8 . Because the Department's primary goals when resolving

enforcement actions are remediation and avoiding protracted

litigation rather than collecting fines , it is not unusual for a

final c onsent o rder to have a lower civil penalty than that

originally proposed. As explained by a Department witness, in

this case it s goals were (a) to avoid protracted litigation that

would delay the implementation of corrective actions; (b) to

require Respondents to quickly assess and begin the cleanup o f

contamination; (c) to restore and protect the environment as

quickly as possible; and ( d ) to require Respondents to remove

and contain all activities on the property that are prohibited

by the Permit and Lease. All of these considerations were taken

int o account in arriving at the terms and conditions of the

final Consent Order.

29 . Immediately after the Consent Order was executed, MABE

timely filed its Petition challenging i t on numerous grounds

including a failure by the Department to address all viol ations

i n the Consent Order ; a failure to recognize continuing

violations; a failure to impose an adequate penalty; a failure

to incorporate language into the Consent Order to ensure that

all conditions will be met ; and a failure to consider all

relevant i nformation at the time the Consent Order was executed.

3 0 . By letter dated June 29, 2010, the Department advised

the C a nonicos that no response to its March 29, 2010, letter had

been received, and that the SAR Addendum had not yet been filed.

The letter noted that even though the Consent Order had been

challenged, which "placed the timeframes contained therein in a

'proposed' status," the SAR Addendum was overdue and that it

must be submitted "immediately." See Petitioner's Exhibit 29.

The Canonicos did not respond to this letter. At hearing, a

Department employee interpreted th e language in the June 29

letter to mean that until this proceeding has been concluded,

the fine and corrective action are temporarily stayed.

Apparently , t he Canonicos have ass ume d the same thing and have

not performed any remedial action or pa id any further penalties

while this action is pending.

B. Rationale for the Consent Order

3 1 . The Consent Order addressed the violations described

in Finding of Fact 2 6 , supra , and requi red Respondents to pay a

civil penalty of $2,000.00 for their failure to construct the

stormwater system in accordance with the Permit. There was no

negotiated reduction or increase in the $2,000.00 amount. Th is

amount was based on a provision in the Env ironmental Litigation

Reform Act (ELRA) codified in Section 403.121 , Florida Statutes.

That statute prescribes the penalties that must be imposed when

the Department pursues administrative remedies for violations of

Chapter 403. A Notice of Violation (NO V) must be issued to

trigger the ELRA process. In this case, the ELRA process was

not required since a NOV was never issued , but the Department

elected to impose that penalty .

3 2 . The Consent Order requires Respondents to repair the

stormwater system a nd submit to the Department an as - built

certification form signed and sealed by a professional engineer

that the system meets or exceeds the requirements of the

permitted activity. In essence, Respondents are required to

re - build the system and certify that it is built consistent with

the Permit.

3 3 . No water quality data was introduced indicating any

degradation of water quality at the marina from the exfiltration

system not being built according to the Permit.

3 4 . To address Respondents' failure to maintain the

stormwater system, inspect it, and submit reports to the

Department, enforceable conditions were added to the Consent

Order, including the filing of reports that the Permit did not

previously contain, and a stipulated penalty of $100.00 per da y

for each day they fail to submit the required reports.

3 5 . The Consent Order requires Respondents to pay a civil

penalty of $3,500.00 for their failure to maintain the

stormwater system, inspect it, and submit reports to the

Department. This amount was reduced in negotiations from an

initial amount of $7,000.00. Exercising its discretion, t he

Department did not consider economic gain by Respondents in

assessing the penalty. As noted earlier, t he Department's

primary goal in negotiating the Consent Ord er was to avoid a

long and uncertain litigation process that would delay an

enforceable order requiring Respondents to immediately implement

a Chapter 62 - 780 waste assessment and cleanup.

3 6 . In order to address the finding that Respondents were

conductin g repairs and maintenance of vessels at the upland

portion of the marina in violation of the Permit, the Department

included language in the Consent Order that specifically defined

a "major repair," which was not included in the existing Permit.

This will make enforcement easier by clarifying any ambiguity

regarding what activities are prohibited. It also required that

any such activity must be conducted off - site, an additional

requirement that was not included in the existing Permit.

3 7 . The Consent Ord er assessed a penalty of $5,000.00 for

the finding that Respondents were conducting repairs and

maintenance of vessels at the upland portion of the marina.

Th is amount was obtained using the Settlement Guidelines. Under

the Penalty Matrix in that documen t, which classifies violations

at three levels of potential for harm (major, moderate, and

minor), t he violation was identified as major , resulting in an

amount of $10,000.00 . This amount was later reduced to

$5,000.00 during negotiations. However, t he D epartment achieved

its goal of binding Respondents to an enforceable agreement that

would require them to immediately implement a Chapter 62 - 780

assessment and cleanup.

3 8 . In order to address the violation that Respondents

failed to install channel marke rs, the Consent Order contained a

provision that required them to apply for the required permits

and install the markers within 30 days of receipt of the

permits . The Consent Order also contained a stipulated penalty

paragraph where Respondents would pay $100.00 per day for each

day of failing to comply with the marker requirements. The

Department is not precluded by the stipulated penalties from

pursuing any statutory remedies or other penalty options

available to it.

39 . The Consent Order assessed a $7 50.00 penalty for

Respondents' failure to install the channel markers , which was

less than the original proposed fine of $2,000.00 based on ELRA

guidelines. To avoid uncertain and costly litigation, however,

and to get Respondents under an enforceable agr eement to

implement a Chapter 62 - 780 assessment and cleanup, the

Department reduced the penalty.

4 0 . In order to address the finding that Respondents

failed to notify the Department of its ownership transfer to

Shannon Sue, the Consent Order required pa yment of $250.00 .

Although ELRA guidelines specified a $1,000.00 penalty, this

amount was lowered during negotiations to avoid protracted

litigation and to get Respondents under an enforceable agreement

to implement Chapter 62 - 780. The Consent Order also requires

submission of a $555.00 processing fee along with supporting

documents for assignment of the lease to the proper party. In

addition, a penalty of $500.00 was assessed for failure to

obtain the required lease after ownership transfer, along with

stipulated penalties of $100.00 per day for failure to do so.

4 1 . For Respondents' failure to notify the Department

within 48 hours prior to commencing construction at the marina,

there is no corrective action required. However, the Department

assessed a $250.00 penalty, which was lowered during

negotiations from the ELRA penalty of $1,000.00 for the reasons

expressed above.

4 2 . For Respondents' unauthorized mooring of commercial

vessels, the Consent Order requires a penalty of $2,500.00,

which was based on a second violation under Rule 18 - 14.002(4).

Although MABE submitted an affidavit, dated photographs, and

testimony to establish multiple violations of the rule, the

Department opted to rely only upon the two violations that its

inspector observed.

4 3 . For Respondents' used oil violation, the Consent Order

requires removal of all containers, material, or equipment at

the marina that handle or contain petroleum or hazardous

substance s greater than one quart in quantity, unless they are

maintained in the ir original container or an independent and

secondary containment system which is designed to contain

discharges to the environment and is secure from the weather.

The assessed penalty of $2,000.00 was lowered from the ELRA

penalty of $4,000.00 during ne gotiations for the reasons

expressed above.

4 4 . To address the finding that a polluting condition had

occurred at the marina and a SAR was not timely submitted, the

Department negotiated an enforceable agreement that requires

Respondents to commence and complete all tasks required under

Chapter 62 - 780 within certain timelines. A penalty was not

assessed because the Department desired to get Respondents under

an enforceable agreement to immediately implement the assessment

and cleanup corrective actions. In addition, by not imposing a

fine, the violator has more resources to assess and remediate

any contamination, which is often a very expensive undertaking.

4 5 . U nder Rule 18 - 14.002, a person is subject to a fine of

up to $10,000.00 for each offense cons tituting a knowing refusal

to comply or a willful violation of the provisions of Chapter

253, Florida Statutes. The Department may impose fines not to

exceed $2,500.00 for the first offense; otherwise, approval of

the Board is required. Subsequent offens es carry a fine of

$1,000.00 to $10,000.00. In this case, the Consent Order

imposed a $2,500.00 fine for violation of the Lease and a

$500.00 fine for violating Section 253.77, Florida Statutes.

Neither fine was shown to be unreasonable under the

circums tances.

4 6 . The penalty amounts, plus $500.00 for Department

costs, were mistakenly summed as $17,750.00 in paragraph 25 of

the Consent Order. The correct amount is $17,250.00.

4 7 . In summary, t he Consent Order was issued to settle

existing outstandin g violations of law and requires Respondents

to pay penalties, reimburse Department costs, and take

corrective measures . It also establishes a framework for

compliance. Taking into consideration all of the circumstances,

t he terms are a reasonable exerci se of the Department's

enforcement discretion.

4 8 . Having incurred substantial expenditures in legal fees

and site assessment costs in attempting to bring its neighbor

into compliance (which probably total much more than the civil

penalties assessed again st Respondents) , and waiting years for

the Department to take action, MABE is understandably

dissatisfied with many of the terms and conditions of the

Consent Order. One of MABE's concerns is that given

Respondents ' history of failing to comply with ERP a nd lease

conditions for more than a decade, they will not comply with the

assessment and remediation requirements of Chapter 62 - 780.

However, the Consent Order is an enforceable agreement that

compels immediate compliance with those rules. The Consent

Or der spells out in clear terms the ability of the Department to

seek the judicial imposition of damages or civil penalties , or

other appropriate relief, for any violations of the Consent

Order. Becaus e of Respondents' prior conduct, which amounted to

a cle ar disregard of permit terms and conditions, i t is presumed

that the Department will respond quickly t o reported violations,

if any occur, and take appropriate action.

49 . MABE also questions the adequacy (and accuracy) of the

penalties. As explained in the Conclusions of Law, this issue

is a matter solely within the discretion of the agency. In the

same vein, MABE contends that the District Office did not take

into account all of the violations that have occurred over the

years , made mistakes in calcula ting the penalties, and failed to

consider the fact that Respondents have continued to violate

certain Permit and Lease conditions since the enforcement action

began. Although some violations were not addressed, some errors

in calculating penalties were m ade, and in some instances

multiple violations were counted as a single violation for

purposes of calculating a penalty, the Consent Order requires

that the violator undertake corrective actions that are designed

to remediate all prior violations , strictly comply with new

terms and conditions, and subject it to stern penalties should

future violations occur.

CONCLUSIONS OF LAW

5 0 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

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

5 1 . MABE is required to present evidence showing how its

substantial interests are affected by the terms and conditions

of the Consent Order. The evidence establishes that the

activities at the marina may have re sulted in contamination of

MABE's property, particularly at the fence line. MABE has

standing to initiate this proceeding.

5 2 . A consent order is a consensual administrative order

authorized under Section 120.57(4), Florida Statutes, that is

agreed to by the Department and one or more respondents. There

are two types of consent orders, one that is a substitute for a

permit, the other that is designed to bring a violator back into

compliance with the law. See , e.g. , Williams v. Moeller and

Dep't of Env tl . Reg. , Case No s . 86 - 1095 and 86 - 1096 (DOAH Aug.

6, 1986 ; DE R Nov. 4, 1986). In the latter type of case, the

scope of review focuses on whether the action taken by the

Department is a reasonable exercise of its enforcement

discretion. See Sarasota C ty. v . Dep't of Env tl . Reg. &

Falconer , Case No. 86 - 2462 (D OAH Jan. 22, 1987 ; DER Mar ch 8,

1987). When a third party challenges a consent order, t he

Department has the burden of proving the consent order is a

reasonable exercise of its enforcement discretion. The

appropriate standard of review is whether the Department abused

its enforcement discretion in agreeing to the settlement. If

the Department is found not to have abused its discretion, the

consent order is adopted; if that burden of proof is not met,

then the consent order is voided. See Lambou, et al. v. Dep't

of Env tl . Protection, et al. , Case No. 02 - 4601 , 2003 Fla. ENV

LEXIS 209 at *4 ( DOAH June 23, 2003 ; DEP Sept. 22, 2003). If

the consent order is voided, the parties must re - enter

negotiations b efore a replacement consent order can be entered.

Id. at *6.

5 3 . The abuse of discretion standard does not turn on

whether the consent order embodies the best possible settlement

or even whether a better settlement could have been reached.

Rather, the s ettlement that was reached must only be reasonable

under the circumstances. It merely needs to be appropriate

given all of the factors that must be considered by the agency

in reaching an agreement. In exercising its discretion, the

Department can consid er factors such as the nature of the

violation, the sufficiency of any penalty, the availability of

Department resources, Department enforcement priorities, and the

harm that might result from restoration. Id. at * 7. Depending

on those circumstances, th e Department may or may not seek total

restoration of damage caused by a violation. Enforcement

discretion also includes the decision to pursue enforcement in

the first instance.

5 4 . The more persuasive evidence establishes that the

terms of the Consen t Order are a reasonable exercise of the

Department's enforcement discretion under the proven

circumstances. MABE did not present any evidence that the

corrective measures outlined in the Consent Order were

un reasonable.

5 5 . MABE conten ds that , given R espondents flagrant

disregard of the law, the civil penalties in the Consent Order

are insufficient to deter Respondents from future violations of

the ERP and Lease. In its Proposed Recommended Order, it

devotes considerable argument for the purpose of de monstrating

that the penalties were improperly calculated , including

deviations from the Settlement Guidelines, mathematical errors,

the treatment of multiple violations as a single violation, and

a failure to address all violations. While Respondents' co nduct

was clearly reprehensible and even egregious at times, and

should have been curtailed years ago when first brought to the

attention of the Department in 2003 , the adequacy of penalties

lies within the discretion of the agency, rather than the

undersi gned. See North Fort Myers Homeowners Ass 'n v. Dep't of

Envtl. Reg. , Case No. 91 - 0235 (Recommended Order of Dismissal

Oct. 31, 1991), adopted , 1992 Fla. ENV LEXIS 14 (DER Jan. 29,

1992) . Moreover, the Settlement Guidelines used by the

Department are not binding and allow the Department to deviate

from the m whenever this will result in better compliance. As to

a contention that the Department failed to consider all

violations, and thus lacked the necessary information to make an

informed decision before e xecuting the Consent Order, "with

regard to [a Consent Order's] claimed failure to address

violations not c overed under the Consent Order or potential

future violations, . . . [t]he decision to initiate enforcement

action is a matter that rests within the enforcement discretion

of the Department." Id. at *7.

5 6 . The evidence supports a conclusion that the Consent

Order is a reasonable exercise of the Department 's enforcement

discretion and should not be voided .

RECOMMENDATION

Based on the foregoing Fin dings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order ratifying and approving Consent Order OGC

No. 08 - 1823 as final agency action of the Department.

DONE AND ENTERED this 4th day of Nov ember , 20 10 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative 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 Hearings

this 4th day of November, 2010.

ENDNOTE S

1/ All rule references are to the current version of the Florida

Administrative Code.

2/ Unless otherwise noted, a ll statutory ref erences are to the

2009 version of the Florida Statutes.

3 / The Intent to Issue indicates that when the application was

filed, 12 wet slips and 25 dry storage slips existed at the

project site, and that 6 of the slips were in a marina basin and

would not be changed, while the other 6 wet slips were at a dock

outside the basin.

COPIES FURNISHED:

Lea Crandall, Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Thomas M. Beason, Gen eral Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

James M. Porter , Esquire

James M. Porter , P.A.

2950 SunTrust International Center

One Southeast Third Avenue

Miami , Florida 3 3131 - 1712

Francine M. Ffolkes, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

John S. Yudin, Esquire

Guy, Yudin & Foster, LLP

55 East Ocean Boulevard

Stuart, Florida 34994 - 221 4

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.