14-003135EF Department Of Environmental Protection vs. Guether Spindler And Inge Spindler Status: Closed DOAH Final Order on Tuesday, June 16, 2015.

Summary: A Summary Final Order is issued against Repondents because there is no disputed issue as to any material fact regarding Respondents' liability for filling wetlands without a permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner,

vs. Case No. 14 - 3135EF

GUE N THER SPINDLER AND INGE

SPINDLER,

Respondents.

_______________________________/

SUMMARY FINAL ORDER

Petitioner filed a motion for summary final order based on

its contention that there is no genuine issue as to any material

fact regarding the Notice of Violation, Orders for Corrective

Action and Administrative Penalty Assessment (ÐNOVÑ) issued

against Respondents. No response to the motion was filed by

Respondents.

APPEARANCES

For Petitioner: Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent: Ryan Dugan, Esquire

2223 McGregor Boulevard

Fort Myers, Florida 33901 - 3311

STATEMENT OF THE ISSUES

Th e issues to be decided in this case are whether

Respondents are liable for the violations charged in the NOV,

whether Respondents should pay the penalties assessed in the NOV,

and whether Respondents should be required to take the corrective

actions demand ed in the NOV.

PRELIMINARY STATEMENT

On May 1, 2014, Petitioner Department of Environmental

Protection (ÐDepartmentÑ) issued the NOV, charging Respondents

with filling a wetland without a permit. On June 23, 2014,

Respondents filed a petition for adm inistrative hearing. The

Department then referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ).

Respondents were generally recalcitrant in responding to

discovery requests, making ordered filings, responding to

motions, and making themse lves available for hearing. Consistent

with this pattern, they did not file a response to the

DepartmentÓs motion for summary final order.

FINDINGS OF FACT

1. The Department is the state agency with powers and

duties related to the regulation of construc tion activities in

wetlands and surface waters, including filling in wetlands.

2. Respondents are individuals who own real property on

Bayshore Road in North Fort Myers, Florida. Some confusion

exists in the record about the street number for the propert y.

It is alternately described as 11590, 11620, 11650, and 11850.

This is partly due to the fact that the property consists of at

least two recorded parcels. The actual location of the filled

area is not disputed, nor is it disputed that Respondents own the

property where the fill was placed.

3. The property is adjacent to the Caloosahatchee River.

It contains freshwater marsh wetlands dominated by Leather Fern.

4. The Department conducted a site inspection of

RespondentsÓ property and determined that Respondents had filled

0.96 acres of wetlands.

5. The Department produced evidence that it incurred costs

of $1,824.50 in this case.

6. The corrective actions ordered in the NOV, which are

designed to restore the wetlands that were filled, are

rea sonable.

CONCLUSIONS OF LAW

7. The Department may initiate an administrative proceeding

to establish liability for violations of the laws the Department

administers. § 403.121(2), Fla. Stat. (2014).

8. Because the Department seeks to impose ad ministrative

penalties, a final order is issued by the Administrative Law

Judge. § 403.121(2)(d), Fla. Stat. (2014).

9. The Department has the burden to prove by a

preponderance of the evidence that Respondent s are liable for the

violations charged in the NOV.

10. A party may move for a summary final order when there

is no genuine issue as to any material fact. § 120.57(1)(h),

Fla. Stat. (2014). The Administrative Law Judge has determined

from the pleadings and affidavits that there is no gen uine issue

as to any material fact.

11. Count I of the NOV charges Respondents with a violation

of Florida Administrative Code Rule 62 - 330.020, which requires

authorization from the Department to fill wetlands. Respondents

are liable under Count I.

12. Section 403.121(3)(c) provides that the Department

shall assess an administrative penalty of $1,000 for unauthorized

filling, plus $2,000 when the area filled is greater than one -

half acre.

13. In Count I, the Department also seeks an administr ative

penalty of $420, which represents the cost of a permit to fill in

wetlands. The Department is authorized to assess a penalty for

failure to obtain a required permit of up to $3,000.

§ 403.121(4)(c), Fla. Stat.

14. RespondentsÓ total liability und er Count I is $3,420.

15. In Count II of the NOV, the Department seeks to recover

its costs. Section 403.121(2)(f) provides that the prevailing

party shall recover all costs incurred in an administrative

enforcement proceeding. Respondents are liable un der Count II

for $1,824.50.

16. The corrective actions ordered in the NOV are

reasonable and should be imposed, except for the deadlines for

compliance, which are unreasonably short.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

Respondents shall comply with the Orders for Corrective

Actions set forth in the NOV except that all deadlines are

doubled in length, so that, for example, the deadline to remove

all fill and restore the Ðwetland impact areaÑ s hall be 60 days,

rather than 30, and payments shall be made in 20 days, rather

than 10.

2. The NOV terms are also modified to change the

DepartmentÓs total cost recovery from $1,000.00 to $1,824.50.

3. All deadlines shall be calculated from the date of t his

Summary Final Order.

DONE AND ORDERED this 16th day of June , 2015 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee 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 16th day of June , 2015 .

COPIES FURNISHED:

Ryan Dugan, Esquire

Law Office of Ryan P. Dugan, P.A.

2223 McGregor Boulevard

Fort Myers, Florida 33901

(eServed)

Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Jonathan P. St everson, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Craig Varn, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boule vard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District C ourt of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.