17-006597EF Department Of Environmental Protection vs. Trad E. And Erica J. Ravan Status: Closed DOAH Final Order on Friday, June 8, 2018.

Summary: Department established that Respondents filled a small area of backyard without a permit.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Petitioner,

vs. Case No. 17 - 6597EF

TRAD E. AND ERICA J. RAVAN,

Respondents.

_______________________________/

FINAL ORDER

Administrative Law Judge D. R. Alexander conducted a hearing

in this case on April 24, 2018, in St. Augustine, Florida.

APPEARANCES

For Petitioner: Carson Zimmer, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Respondent s : Trad Ravan , pro se

Erica Ravan , pro se

3100 Victoria Drive

St. Augustine, Florida 32086 - 5483

STATEMENT OF THE ISSUE

The issue is whether Respondents should have an

administrative penalty assessed, take corrective action on their

property to remove fill, and pay investigative expenses for the

reasons stated in the Notice of Violation, Orders for Corrective

Action, and Administrative Penalty Assessment (Notice) issued by

the Department of Environmental Protection (Department) on

July 5, 2017.

PRELIMINARY STATEMENT

In a two - count Notice, the Department alleges that in 2016 ,

Respondents filled 0.11 acres of jurisdictional wetlands on their

property in St. Augustine, Florida, without a permit. The Notice

proposes to assess a $1,000.00 administrative penalty, require

certain corrective action, and recover $500.00 in investigative

expenses incurred by Department staff. Respondents timely

requested a hearing to contest the proposed agency action, and

the matter was referred by the Department to the Division of

Administrative Hearings to conduct a hearing. The case was

initially assigned to Administrati ve Law Judge Canter , but was

later transferred to the undersigned.

At the hearing, the Department presented the testimony of

one witness. Department Exhibits 1 through 21 were accepted in

evidence. Respondents were represented by Mr. Ravan, who

testifi ed on their behalf. Respondents Ó Exhibits 1 through 14

were accepted in evidence.

A one - volume Transcript of the hearing was prepared. A

proposed final order was filed by the Department on May 24, 2018,

and has been considered in the preparation of thi s Final Order.

FINDING S OF FACT

1. Respondents Ó residence is located at 3100 Victoria

Drive, St. Augustine. The property, purchased in 2009, faces

Victoria Drive to the west. The high point of the lot is where

it abuts the street. It then slopes downw ard to a small creek

which lies at the rear of the parcel. The largest elevation drop

is at the front of the property.

2. The Department has the authority to institute a civil or

administrative action to abate conditions that may create harm to

the envir onment. In this case, it filed a Notice directed

against Respondents for allegedly placing fill on 0.11 acres of

jurisdictional wetlands (around 5,000 square feet) located on

their property. Mr. Ravan admits that he placed fill on his

property without a permit, but he disputes the Department Ó s

assertion that the filled area covers 0.11 acres of wetlands.

3. Wetlands are areas that are inundated and saturated with

water for a long enough period of time to support vegetation that

can adapt to that environm ent. Fla. Admin. Code R. 62 -

340.200(1). If the landward extent of a wetland cannot be

determined by direct application of the rule definition, i.e. ,

without significant on - site work, field verification using the

wetland delineation methodology in Florida Administrative Code

Rule 62 - 340.300 is required. Field verification involves a

visual inspection of the site to evaluate vegetation, soil

conditions, and other hydrologic indicators on the property. If

two of these characteristics are found, the Departm ent identifies

the area as a wetland. In this case, field verification was

necessary.

4. In 2016, Mr. Ravan was involved in a dispute with a

neighbor whose dog was repeatedly Ð messing Ñ in his backyard.

After words were spoken by the two, Mr. Ravan belie ves the

neighbor informed the County that Mr. Ravan was placing fill in

his back yard. This assumption probably is true, as e mails from

the County to the Department state that the case arose a few days

later as a result of a Ð citizen complaint. Ñ Pet Ó r Ex . 18.

5. After receiving the citizen complaint, a County employee

visited Respondents Ó property. The employee informed Mr. Ravan

that fill material (dirt) had been placed on jurisdictional

wetlands without a permit. A few days later, the County report ed

the alleged violation to the Department.

6. In response to the County Ó s referral, in September 2016,

Ms. Sellers, a Department Environmental Specialist III, inspected

the property with a County representative. In preparation for

her visit, she reviewe d aerials of the property to determine the

elevation of the area, reviewed soil mapping layers, and drove

around the site to verify the drainage patterns on the property

and whether it had any connections to a water body.

7. During her inspection, Ms. Se llers performed Ð a good

analysis of the property Ñ and took photographs of the filled

area. The results of her inspection are found in a Chapter 62 -

340 Data Form accepted in evidence as Exhibit 17. It supports a

finding that the filled area consists of we tlands and covers

around 0.11 acres. Respondents submitted no contrary evidence.

8. After her inspection, Ms. Sellers informed Mr. Ravan

that he must remove the fill. The Notice was issued on July 5,

2017.

9. On a follow - up visit a year after her ini tial

inspection, Ms. Sellers observed that some of the fill piles had

been removed, the remaining fill had been spread throughout the

area, and some of the vegetation observed in September 2016 was

now covered. In a visit a few weeks before the final hear ing in

April 2018, Ms. Sellers observed that some fill still remained.

10. To comply with the law, Mr. Ravan must remove the fill,

obtain a permit, or enter into a consent order. If a permit is

obtained, besides the cost of the permit ($420.00), Mr. Rava n

would have to offset the environmental impacts by purchasing a

mitigation bank credit, an expensive undertaking. If the fill is

removed, it must be extracted with a small device, such as a

wheelbarrow or other small piece of equipment, as a vehicle

cann ot be driven into the backyard. This will be a tedious and

time - consuming process. The Department Ó s preferred option is to

remove the fill.

11. Because of the slope of the lot, mainly at the front of

the parcel, Mr. Ravan has experienced drainage proble ms since he

purchased the home in 2009. The drainage problem is caused by a

County - owned culvert that runs along Victoria Drive , stops at the

corner of his lot, and then dumps the runoff into his yard.

Despite Mr. Ravan Ó s repeated efforts to obtain relie f, the County

has refused to correct the problem. During heavy rain events,

the blocked culvert overflows into his yard and runs down the

side of his property to the rear of the lot. Photographs support

Mr. Ravan Ó s claim that the drainage problem has cau sed severe

erosion on his property.

12. Mr. Ravan testified that some of the fill was in place

when he purchased the property from the prior owner in 2009.

Because of its age, he contends the fill should be

Ð grandfathered. Ñ However, Ms. Sellers establ ished that Ð historic

fill Ñ must be at least 20 years old in order to be immune from

enforcement action. In this case, there is no proof that the

fill qualifies for this exception.

13. Mr. Ravan has cooperated fully with the Department

throughout this pro ceeding. The evidence shows that Mr. Ravan

acted in good faith and is only attempting to prevent runoff from

the culvert, which has resulted in deep channels in the side and

rear of his yard and washed away much of the top soil.

14. There is no evidence regarding the derivation of the

Department Ó s Ð investigative expenses Ñ of at least $500.00.

15. At hearing, Ms. Sellers summarized the proposed

corrective action. This is a reasonable corrective action. 1/

Mr. Ravan disputes her assertion that in some a reas of the

backyard, up to two feet of fill must be removed. He contends

that if two feet of soil is removed, the water table would be

reached. However, this issue must be resolved during the

corrective action process.

CONCLUSIONS OF LAW

16. Section 40 3.121(2)(b), Florida Statutes, provides that

the Department may institute an administrative proceeding to

order the abatement of conditions creating a violation of the

law. The Department has the burden of proving by a preponderance

of the evidence that R espondent s are responsible for the

violation. § 403.121(2)(d), Fla. Stat. Because the Department

is requesting the imposition of administrative penalties,

Ð [f]ollowing the close of the hearing, the administrative law

judge shall issue a final order on al l matters, including the

imposition of administrative penalty. Ñ Id.

17. Rule 62 - 330.020(2)(a) requires that a permit must be

obtained from the Department prior to filling in, on, or over

wetlands and other surface waters. The facts here establish that

a violation of the rule has occurred. This in turn constitutes a

violation of section 403.161, which makes it unlawful to

contravene a Department rule.

18. Pursuant to section 403.121(3), for a fill violation,

the Department shall assess a penalty of $1,000.00 for

unpermitted filling. However, section 403.121(10) provides that

the administrative law judge may receive evidence in mitigation

and that the penalty Ð may be reduced up to 50 percent Ñ for

mitigating circumstances. In this case, the circumsta nces

warrant a 50 - percent reduction in the administrative penalty.

19. There is no evidence to establish the accuracy or

reasonableness of the investigative expenses. Therefore, the

request for reimbursement of these expenses is denied.

20. The correcti ve actions ordered in the Notice 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 c omply with the Orders for

Corrective Action set forth in the Notice except that all

deadlines are doubled in length, so that, for example, the

deadline to remove all fill and restore the wetland impact area

shall be 60 days, rather than 30, and the adminis trative fine

shall be paid in 60 days.

A penalty in the amount of $500.00 is imposed. Recovery of

investigative expenses is denied.

All deadlines shall be calculated from the date of this

Final Order.

DONE AND ORDERED this 8th day of June , 2018 , in Tallah assee,

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 - 6 847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of June , 2018.

ENDNOTE

1/ While the corrective action cures the illegal fill problem, it

does very little to prevent runoff from the County culvert, which

continues to wash away the side and rear of Mr. Ravan Ó s yard. At

hearing, Ms. Sellers suggested that Mr. Ravan install French

drains or some other type of drainage system to alleviate the

problem. The best solution may be some type of corrective ac tion

by the County.

COPIES FURNISHED:

Trad Ravan

Erica Ravan

3100 Victoria Drive

St. Augustine, Florida 32086 - 5483

Carson Zimmer, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3 000

(eServed)

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Environmental Protection

Do uglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Robert A. Williams, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonw ealth 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 proceeding s 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 Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.