14-005515EF Department Of Environmental Protection vs. Margerita Quintero And Thomas Patas Status: Closed Recommended Order on Tuesday, May 5, 2015.

Summary: Charge that Respondents constructed a walkway and deck on state-owned lands without authorization sustained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF TRUSTEES OF THE

INTERNAL IMPROVEMENT TRUST

FUND,

Petitioner,

vs.

Case No. 14 - 55 15EF

MARGERITA QUINTERO AND

THOMAS PATA S ,

Respondent s.

_______________________________/

RECOMMENDED ORDER

On April 17, 201 5 , a hearing in this case was held by video

teleconferenc ing at sites in Fort Myers and Tallahassee,

Florida, before D.R. Alexander, Administrative Law Judge,

Division of Administrative Hearings (DOAH) .

APPEARANCE S

For Petitioner : Matthew Smith - Kennedy , Esquire

D epartment of Environmental Protection

Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 323 99 - 300 0

For Respondent s : No Appearance

STATEMENT OF THE ISSUE S

The issue s are whether Respondent s constructed a dock and

walkway on state lands in Collier County, Florida, without

obtaining authorization, and if so, whether an administrative

fine should be imposed for this action; and whether certain

corrective action should be taken by Respondents, as described

in Petitioner's First Amended Notice of Violation, Orders for

Corrective Action, and Administrative Fine Assessment ( First

Amended NOV) filed on Mar ch 24, 2015.

PRELIMINARY STATEMENT

Pursuant to section 253.04, Florida Statutes (2014), o n

October 7, 2014, the Board of Trustees of the Internal

Improvement Trust Fund (Board) issued an NOV alleging that

Respondent s had constructed a walkway and dock on s tate - owned

uplands and submerged lands without authorization from the

s tate. The NOV s ought to impose an administrative fine and

require certain corrective action. The Board later requested

and was authorized to file a First Amended NOV , which clarified

the charges . Respondents requested a formal hearing, and the

matter was referred by the Board to DOAH to conduct a hearing.

At the final hearing, the Board presented the testimony of

three witnesses. Board Exhibits A through C, G, H, J, and K

were accep ted in evidence. Although given timely written notice

of the hearing , there was no appearance by Respondents. 1/

A t ranscript of the hearing has been prepared . The Board

did not submit a p roposed r ecommended o rder .

FINDINGS OF FACT

1. The Board is res ponsible for overseeing state - owned

lands and ensuring that they are managed in trust for the

citizens of the state. The Department of Environmental

Protection (Department) performs all staff duties and functions

related to the administration of state lan ds. See § 253.002(1),

Fla. Stat. Pursuant to that authority, t he Department has

prosecuted this action on behalf of the Board.

2. Since December 1, 2005, R espondents , Margarita Quintero

and Thomas Patas, as tenants in common, have own ed property at

1899 Sheffield Avenue, Marco Island, Florida . See Bd. Ex. G.

The property is more specifically identified as Parcel ID No.

57200400000, Section 16, Township 52 South, Range 26 East . A

narrow wooden walk way extends in a south - southeast er ly direction

from Res pondents' property to a small terminal platform in

Barfield Bay , a waterbody that lies south of Respondents' lot.

See Bd. Ex. C.

3. The Board owns up lands located in Section 16, Township

52 South, Range 26 East, and those sovereign submerged lands of

Bar field Bay lying adjacent to Section 16 . Those lands are

described as follows: Lots 22 and 23, Block 149 and Lot 10,

Block 150, and that portion of Dogwood Drive lying between Lots

22 and 23 and Lot 10 , of the subdivision of Marco Beach Unit

Five recorded in Plat Book 6, Pages 39 through 46, Public

Records of Collier County. See Bd. Ex. G - 2. Most of the

uplands w ere deeded to the state in 1985 pursuant to a

settlement agreement with The Deltona Corporation , while a small

sliver of land was deeded to the state in September 2013.

Respondents' property is located adjacent to these state - owned

lands.

4. On March 28, 2012, the Department received a complaint

from a third party that the walkway and dock had been

constructed adjacent to Respondents' property . In a letter

dated April 19, 2012, the Department warned Respondents of

"possible violations of the law." See Bd. Ex. J. The letter

stated that the Department believed Respondents were responsible

for a dock being installed on state - owned lands and man groves

had been altered for the installation of the dock. The letter

also noted that Respondents' property did not appear to be

riparian. Respondents were requested to contact the Department

within 15 days to arrange a meeting to discuss th e se issues.

R espondents did not reply to the letter or meet with Department

representatives .

5. On June 14, 2012, the Department recorded a N otice of

Unauthorized Structure (N OUS ) in the public records of Collier

County. See Bd. Ex. H. The NOUS was intended to serve as

notice to prospective purchasers and other interested persons

that certain unauthorized structures were located on state lands

adjacent to Respondents' property. There is no evidence that

Respondents responded in any manner to the NOUS.

6 . On Decembe r 10, 2012, a Department Environmental

Specialist III c onducted an inspection of the walkway and dock.

He observed a two - foot wide access walk way extend ing 335 feet

from Respondents' property , which terminate d at a 63 - square - foot

terminal platform (dock) in Barfield Bay. T he total dock size

is 733 square feet, while the walkway encompass es around 670

square feet. See Bd. Ex. A. A follow - up inspection on

January 12, 2015, revealed that the structure had not been

removed. See Bd. Ex. K.

7 . P roperty re cords and a coastal engineering site survey

confirm that the structure passes over state - owned uplands

before crossing the Mean High Water Line and onto sovereign

submerged lands in Barfield Bay . See Bd. Ex. C. There is no

evidence that Respondents obtai ned authorization to construct

the walkway and dock.

8 . To determine when the dock and walkway were

constructed, the Department reviewed a erial images of the

property taken in 2004, 2006, 2009, and 2012 . See Bd. Ex. B.

The walkway and dock did not appea r until the 2012 image. T his

confirms that Respondents constructed the walkway and dock after

they purchased the ir property in December 2005 .

9 . The First Amended NOV seeks to impose an administrative

fine on each Respondent in the amount of $2,500.00 f or

unauthorized use of sovereign submerged land. If the walkway

and dock are removed within 20 days, no fine will be imposed.

For every day after the 20 days that removal does not occur, the

Board intends to impose a fine accruing at a rate of $10,000.00

per day.

1 0 . As corrective action, the Board proposes generally

that Respondents remove the walkway and dock within 20 days from

the date of a Final Order ; that during such removal steps be

taken to ensure that no further impacts to mangroves, wetlands,

and bay bottom occur; that water quality be protected during

this process ; and that the material be disposed of in an

appropriate upland location .

CONCLUSIONS OF LAW

1 1 . The Board has the burden of proof to show, by clear

and convincing evidence, that R espondent s committed the acts

alleged in the First Amended NOV . See , e.g. , Dep't of Banking &

Fin. v. Osborne Stern & Co. , 670 So. 2d 932 , 935 (Fla. 1996 ).

1 2 . Section 253.77(1) provides that a person may not

commence any construction or other activity involving the use of

sovereign or other lands of the state without the required

lease, license, easement, or other form of consent authorizing

the proposed use.

13. Section 253.04(2) authorizes the Board to take

enforcement action against persons who h ave knowingly refused to

comply with or willfully violated the provisions of chapter 253.

14. By clear and convincing evidence, the Board has

established that Respondents constructed a walkway and dock on

state - owned lands without authorization from the state.

1 5 . The evidence establishes that by building and

maintaining docks and pilings on or over state land without

authorization, Respondents have also violated Florida

Administrative Code Rule 18 - 14.003 , which makes it unlawful to

knowingly refus e t o comply with any provision in chapter 253 .

The facts establish that Respondents' actions were willful.

1 6 . R ule 18 - 14.002 provides that for knowingly refusing to

comply with or willfully violating a provision of chapter 253,

the Board shall impose upon the violator a n administrative fine

ranging from $1.00 to $2,500.00 for the first offense.

"Offense" is defined in rule 18 - 14.001(4) as each day during

which a violation occurs. The Board proposes to impose a

$2,500.00 fine on each Respondent, which fall s at the top of the

permissible range.

17. In determining the amount of the fine, the Board can

consider aggravating or mitigating circumstances specific to the

violation, including the nature and extent of the violation, a

violator's degree of cooperat ion in correcting the violation,

and a violator's good faith efforts to negotiate a settlement

before legal proceedings begin. See Fla. Admin. Code R.

18 - 14.002( e).

18. Given Respondents' failure to correct the violation

after being sent written n otice in April 2012, a nd no evidence

of good faith efforts to negotiate a settlement, the Board's

proposed fine is appropriate.

1 9 . If the dock and walkway are removed in the manner and

timeframe set out herein, the Board does not intend to assess a

fine . To satisfy this condition, Respondents must remove the

walkway and dock from state property within 20 days from the

date of the final order entered in this proceeding. The

structure, including all decking, stringers, and pilings, shall

be accessed and removed without causing further impacts to

mangroves, wetlands, and bay bottom, and steps shall be taken to

ensure that water quality will be protected during removal.

Finally, the material shall be disposed of in an appropriate

upland location. If this corrective action is not taken, the

Board intends to impose a fine in the amount of $10,000.00 per

day until the structure is removed. See Fla. Admin. Code R. 18 -

14.002(4)(b). This corrective action is reasonable.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Board of Trustees of the Internal

Imp ro vement Trust Fund enter a f inal o rder sustaining the

charges in the First Amended NOV. Within 20 days of the entry

of a final order, each Respondent s hall pay $2,500.00 to the

Department. Payments shall be made by cashier's check or money

order payable to the "Internal Improvement Trust Fund." All

payments shall be sent to the Department of Environmental

Protection, South District, SLERP Section, Post Office Box 2549,

Fort Myers, Florida 33902 - 2549.

If Respondents complete removal of the walkway structure

and dock from Board property in accordance with the corrective

action described in paragraph 1 9 , Respondents do not have to pay

the fines. If Res pondents fail to complete removal of the dock

and walkway structure in accorda nce with the corrective action,

the fine will begin accruing at a rate of $10,000.00 per day.

DONE AND ENTERED this 5th day of May , 201 5 , in Tallahassee,

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

File d with the Clerk of the

Division of Administrative Hearings

t his 5th day of May , 201 5 .

ENDNOTE

1 / D uring a pre - hearing conference on March 25, 2015,

Respondents' counsel stated that he intended to file a motion to

withdraw as counsel. However, a motio n to withdraw was never

filed, and he remains counsel of record. According to counsel,

Respondents reside in Bogota, Colombia, a part of each year, and

while they were aware of this proceeding and its implications ,

they did not intend to return to the Uni ted States to attend the

hearing.

COPIES FURNISHED :

Jonathan P. Steverson, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Matthew Smith - Kennedy, Esquire

D epartment of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 323 99 - 3 000

(eServed)

Robert E. Bickford, Esquire

Robert E. Bickford, P.A.

637 Denise Drive

Melbourne, Florida 32935 - 6412

Craig D. Varn, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 3 2399 - 3000

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

r ender a final order in this matter.