DEPARTMENT OF ENVIRONMENTAL PROTECTION
Notice of Intent to Issue Consent Order and Variance
RULE NO.:RULE TITLE:
62-312.410General Criteria
The Department of Environmental Protection gives notice of its intent to issue a Consent Order and Variance (1) to resolve all matters with Lazaro R Martinez and Marialina T Martinez (Respondents), pursuant to Section 120.57(4), Florida Statutes (F.S.), for violations of Sections 373.430, and 403.161, F.S., and Rule 62-330.020, Florida Administrative Code (F.A.C.); and (2) to grant a variance, pursuant to Section 403.201, F.S., to Lazaro R Martinez and Marialina T Martinez from the provision of Rule 62-312.410(2), F.A.C. The Order addresses the unauthorized placement of approximately 143 square feet of fill on privately-owned submerged canal bottom and construction of riprap revetment on the property owned by Lazaro R Martinez and Marialina T Martinez, located at 184 Venetian Drive, Islamorada, Florida (Monroe County Property Appraiser Parcel ID 00393860-000000), without obtaining a valid permit from the Department. The purpose of the fill placement is to reestablish the historical shoreline of the property and stabilize it with a riprap revetment. The Order grants a variance under Section 403.201, F.S., from the prohibition to grant an Environmental Resource Permit under Rule 62-312.410(2), F.A.C., and grants regulatory authorization for the permanent placement of approximately 143 square feet of fill on the property subject to the findings and conditions set out in the Order.
The Department will issue the proposed Consent Order and Variance unless a timely petition for administrative hearing is filed under Sections 120.569 and 120.57, F.S., before the deadline for filing a petition. On the filing of a timely and sufficient petition, this action will not be final and effective until further order of the Department. Because the administrative hearing process is designed to formulate final agency action, this process may result in a modification of the proposed agency action or even denial of the application. The procedures for petitioning for a hearing are as follows.
A person whose substantial interests are affected by the Department’s action may petition for an administrative proceeding (hearing) under Sections 120.569 and 120.57, F.S. The petition must contain the following information required by Rules 28-106.201 and 28-106.301, F.A.C.:
(a) The name and address of each agency affected and each agency’s file or identification number, if known;
(b) The name, address, any email address, any facsimile number, and telephone number of the petitioner; the name, address, email address, and telephone number of the petitioner’s representative, if any, which shall be the address for service purposes during the course of the proceeding;
(c) An explanation of how the petitioner’s substantial interests are or will be affected by the agency determination;
(d) A statement of when and how the petitioner received notice of the agency decision;
(e) A statement of all disputed issues of material fact; or, if there are none, the petition must so indicate;
(f) A concise statement of the ultimate facts alleged, including the specific facts that the petitioner contends warrant reversal or modification of the agency’s proposed action;
(g) A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how any alleged facts relate to the specific rules or statutes; and;
(h) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wishes the agency to take with respect to the agency’s proposed action.
Petitions must be filed (received by the Clerk) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000. The failure of any person to file a petition for an administrative hearing within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S. If petitioner is someone other than the Respondents to the Consent Order and Variance, the petitioner shall also mail a copy of the petition to the Respondents at the following addresses: Lazaro R Martinez and Marialina T 13851 SW 30th Street, Miami, FL 33175.
In accordance with Rule 62-110.106(3), F.A.C., petitions for an administrative hearing by the Respondents to the Consent Order and Variance and persons who have asked the Department in writing to receive notice of this action pursuant to Sections 403.201 and 120.63, F.S., must be filed within 21 days of receipt of this written notice. Petitions filed by any persons other than the applicant and those entitled to written notice under Section 120.60(3), F.S., must be filed within 21 days of publication of the notice or within 21 days of receipt of the written notice, whichever occurs first. The failure to file a petition within the appropriate time period shall constitute a waiver of that person's right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention (in a proceeding initiated by another party) will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-106.205, F.A.C.
Under Sections 120.569(2)(c) and (d), F.S., a petition for administrative hearing must be dismissed by the agency if the petition does not substantially comply with the above requirements or is untimely filed.
Mediation is not available in this proceeding.
The Consent Order and Variance, and all files associated with the Order are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays at the Department of Environmental Protection, South District Branch Office, 2796 Overseas Highway, Suite 221, Marathon, Florida 33050.
