Title: Hopwood v. State Dept. of Environmental Reg.
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 Material Information
Title: Hopwood v. State Dept. of Environmental Reg.
Physical Description: Book
Language: English
Publisher: 402 Southern Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Hopwood v. State Dept. of Environmental Reg. (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004484
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text

402 SOUTHERN REPORTER, 2d SERIES


Since the photographs could not be used
to establish constructive notice and there
was no evidence in the record regarding the
length of time the defect in the curb had
existed, the grant of the directed verdict
was proper. City of Jacksonville v. Hamp-
ton, supra.

[2] Hannewacker's reliance on Bennett
v. Mattison, 382 So.2d 873 (Fla. 1st DCA
1980), regarding the failure of the defend-
ants in a slip-and-fall case to take reasona-
ble care by not having an inspection proce-
dure to discover water on the floor and
clean it up, is misplaced. In that case the
plaintiffs established that the defendants
had received repeated verbal and written
warnings that the hallway in question was
slippery when wet and that water accumu-
lated in the hallway on a daily basis. This
court held that the repeated warnings put
them on notice and created a jury question
as to whether they exercised reasonable
care to guard against foreseeable danger.
In the instant case, Hannewacker failed to
establish that the City had received any
notice of the existence of the dangerous
condition complained of and thereby failed
to create a jury question as to the exercise
of reasonable care to guard against a fore-
seeable danger. -
Pursuant to Article V, Section 3(bX4),
Florida Constitution, we certify this deci-
sion to the Supreme Court as being in direct
conflict with a decision of another district
court of appeal.
AFFIRMED

S BOOTH and LARRY G. SMITH, JJ., con-
cur.




u-eIm ,
J ojllTlB SY:N


SRonald T. HOPWOOD and Milan M.
Knor, Appellants,
v.
STATE of Florida DEPARTMENT OF
ENVIRONMENTAL REGULATION,
Appellee.
No. YY-256.
District Court ot Appeal of Florida,
First District.
S Aug. 13, 198L

Landowners who applied for dredge
and fill permit appealed from final order of
the Department oLEnvironmental Regula-
tion directing that permit application be
denied. The District Court of Appeal held
that in light of Department practice of
granting permit applications subject to
modifications recommended by hearing offi-
cer, numerous favorable findings that per-
mit application, if modified according to
hearing officer's proposals, would meet ap-
plicable state standards, and relatively mi.
nor nature of such modifications, Depart-
ment's action in denying application consti-
tuted abuse of discretion.
Reversed and remanded.

1. Constitutional Law C=278.1
Major or substantial amendments to or
modifications of dredge and fill permit ap-
plication in midproceeding by hearing offi-
cer may constitute due process problem of
notice to Department of Environmental
Regulation. West's F.S.A. 120.57(1),
253.001 et seq., 403.011 et seq.
2. Health and Environment e25.5(9)
Hearing officer's suggested modifica-
tions to dredge and fill permit application
regarding enlargement of proposed culvert
system did not constitute such 'substantial
deviation from. original application as to
deprive Department of Environmental Reg-
ulation of notice.


3. Health and Environment <=z25.5(v)
In view of Department of Environmen-
tal Regulations practice of granting permit
applications subject to modifications recom-
mended by hearing officernumerous favor-'


1296 Fla.


'


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'.4

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HOPWOOD v. STATE DEPT. OF ENVIRONMENTAL REG. Fla. 1297
Cte as, FlaApp. 402 So.2d 12i


able findings that dredge and fill permit
application, if modified according to hear-
ing officer's proposals, would meet applica-
ble state standards, and relatively minor
nature of modifications, Department's ac-
tion in denying application constituted
abuse of discretion.


Thomas G. Pelham and Roger D.
Schwenke of Carlton, Fields, Ward, Em-
manuel, Smith & Cutler, Tampa, for appel-
lants.
Terry Cole, Gen. Counsel, and Segundo-J.
Fernandez and Charles G. Stephens, Asst.
Gen. Counsel, Tallahassee, for appellee.

PER CURIAM.
Ronald T. Hopwood and Milan M. Knor
(landowners) appeal from a final order of
the Department of Environmental Regula-
tion (DER) which directs that their permit
application be denied. Landowners essen-
tially argue that DER improperly rejected
the DOAH hearing officer's recommended
order that their permit application be
granted in part. Upon the unique facts of
this case, we agree with their contentions
and reverse.
The landowners submitted to DER a
dredge and fill permit application pursuant
to Chapters 253 and 403, Florida Statutes,
to complete construction of a perimeter ca-
nal around Big Pine Island in Lake Griffin,
Lake County, Florida. In doing so, they
proposed to deposit the resulting fill materi-
al on the island side of the perimeter canal
below the ordinary high water elevation of
Lake Griffin, to use turbidity curtains dur-
ing the dredging process, an4 to install two
culverts in the causeway connecting Pine
Island to the mainland. In its appraisal
report, DER felt that no environmentally
acceptable modification was available.
While it did endorse the landowners' pro-
posal to place culverts under the causeway,
it nevertheless gave notice of its intent to
deny the application. The parties then pro-
ceeded to a Section 120.57(1) hearing before
a DOAi hearing officer.
40 So.2d--


After considering the evidence and testi-
mony presented by the two parties, the
hearing officer made the following relevant
findings of fact in her recommended order:
SThe construction of the causeway be-
tween the mainland and Big Pine Island
in 1958 has prevented virtually any water
from circulating between the marsh area
and canal south.of the causeway and the
marsh area and canal north of the cause-
way. Due to this blockage of flow, lower
dissolved oxygen levels and lower temp-
eratures exist on the north side of the
causeway. The 'south canal helps to
maintain oxygen levels, in the south
marsh above concentrations considered
critical to maintain aquatic life. The
presence of the causeway has reduced the
outflow of Lake Griffin by half, thereby
increasing the residence time in the lake
and promoting nutrient level build-up in
the system. By increasing the waterflow
through the marsh surrounding'the is-
land, the quality of water entering the
Oklawaha River from eutrophic Lake
Griffin should be greatly improved.
The marsh to the iorth of the cause-,
way presently serves a vital purpose by
removing nutrients and other deleterious
substances from the water flowing from
Lake Griffin into the Oklawaha River.
The marsh community acts in a matter
[sic] similar to the human kidney by fil-
tering deleterious substances from the
surface water.
Biological productivity- of the north
marsh area is directly proportional to the
amount of flow. This area presently ex-
periences water movement caused by the
control of water elevations in the Oklaw-
aha chain of lakes by a series of control
structures. This "back-water" effect,
which is caused by movement in the Ok-
lawaha, is not a sheet flow. If a sheet
flow could be created, the rmarsh area
directly north of the causeway, which is
severely distressed, could be improved.
A sheet flow northward could be creat-
ed by the proper placement of adequate
size culverts under the causeway and
completion of the canal. The canal ouild
facilitate the flow of water northward by





402 SOUTHERN REPORTER, 2d SERIES


permitting water to overflow the canal
bank on the north side. This would be
caused by the effects of a hydraulic gra-
dient which exists between the water lev-
el in the canal and the ordinary mean
high water level maintained by the St.
John's River Water Management District.
The hydraulic gradient would cause the
canal to overflow its unobstructed north
bank and travel northward through the
marsh into the Oklawaha River. Water
would be blocked by overflowing on the
southeast side of the island because of the
existing berm.
In order to restore circulation, it would
also be necessary to construct a series of
culverts evenly distributed under the
causeway. The two-culvert system pro-
posed by the Petitioners (landowners)
would have a cosmetic effect and not
significantly improve the natural water
flow between the canals.
If the flow through the highly dis-
Stressed marsh to the north of the cause-
way could be improved through the prop-
er placement of culverts and construction
of a perimeter canal, the positive aspects
of the project would outweigh the nega-
tive impact of the elimination of approxi-
mately six (6) acres of productive marsh-
land. If steps are not taken to reverse
the continuing degradation of the marsh
directly north of the causeway, a large
and valuable area of wetlands will be
lost. Artificial conditions already exist
due to the finger canal on the north side
of the causeway and the causeway itself.
The proposed filling'of the island which
is to occur below the 59.5-foot elevation
(ordinary high water line) will reduce the
river's flood storage capacity and the
1 area capable of supporting plant and ani-
mal life. The private benefit of placing
the spoil from the dredging project on the
island below the 59.5-foot elevation is
outweighed by the negative impact asso-
ciated with the elimination of a signifi-
Scant amount of lowlying marshland, Ad-
equate alternative means exist to provide
fire protection to the residents of the
island, and the filling of the outlying
marshes on the island is not necessary to
accomplish this purpose.


SPetitioners have not been denied the
use of their property either by the De-
partment's denial of this permit or the
Granting of this permit with conditions.
The existing lots are suitable for residen-
tial purposes, including that portion of
the island below the 59.5-foot" elevation
which may be used for residential devel-
opment by placing housing on pilings or
poles.
Upon these findings of fact, the hearing
officer in her conclusions of law recom-
mended that the filling activity not be per-
mitted. However, she also concluded that
the public interest would be served by the
proposed dredging [Section 253.123(3Xa),
Florida Statutes] and that reasonable assur-
ances had been provided that this activity
would not result in violation of applicable
water quality standards [Florida Adminis-
trative Code Rule 17-3] if'certain conditions
or modifications were made. Specifically,
she recommended that the landowners in-
stall culverts or other similar structures of
appropriate size to facilitate an adequate
exchange of water between the canal on
the north and south sides of the causeway,
the number and size of the culverts or other
structures to be determined by DER. She
also recommended that the landowners be
required to utilize equipment including, but
not limited to, turbidity curtains to keep
turbidity at a minimum during the dredg-
ing process.
DER accepted the hearing officer's find-
ings of fact in toto but rejected her conclu-
sion of law no. 6 with respect to the last
two sentences (underscored):
The purpose of an administrative hear-
ing is to formulate final agency action by
considering the facts as' reflected in the
record, the law, and agency policy. In
the instant case, the application as sub-
mitted does not meet the standards re-
quired for permitting as set forth by stat-

ute and regulation. This does not, how-
ever, mandate that the application be de-
nied. Rather, the hearing process should-
be a vehicle for the formulation of final
agency action which gives due considera-


1298 Fla


I rrll,


I





HALL TRUCK SALES, INC. v. WILDER MOBILE HOMES Fla. 1299
ate as, Fl.App. 402 So.2d 129


tion to appropriate modifications which
could conform a project to the laws of the
state.
Having rejected this particular conclusion
of law, DER directed-that the landowners'
permit application be denied.
[1-3] DER takes the position that the
hearing officer exceeded her statutory au-
thority under Chapter 120 in proposing
modifications to the permit application to
make it conform to applicable rules and
regulations of DER We recognize that
major or substantial amendments to or'
modification of a permit application in mid-
proceeding may well constitute a due proc-
ess problem of noticeto the agency. How-
ever, in view of the unique facts of this
case, especially the hearing officer's numer-
ous favorable findings of fact which were
adopted in tot by DER, we are unable to
conclude thatthe hearing office's suggested
modifications regarding an enlargement of
the proposed culvert system constitutes
such a substantial deviation from the origi-
nal permit application. Indeed, DER itself
initially agreed that some degree of a cul-
vert system be put into place. For it to
now argue that the hearing officer's pro-
posed modifications are beyond the parame-
ters of the original permit application thus
seems a bit ingenuous. Further, we take
note that DER has previously granted per-
mit applications subject to modifications
recommended by a hearing officer. See, e;
g., Long v. Okaloosa County, II F.A.L.R.
777-A (May 15, 1980); City of Tallahassee
v. State of Florida, II F.A.L.R. 569-A
(April 1, 1980); Sauls v. McAllister, II F.A.
LR. 430-A (March 7,1980). In view of this
agency practice, the numerous favorable
-findings that the permit application, if mod-
ified according to the hearing officer's pro-
posals, would meet applicable state stan-
dards, and the relatively minor nature of
these modifications, we conclude that
DER's action in denying this application
constituted an abuse of discretion. See
Public Bank of St Cloud v. State Depart-
ment of Banking and Finance, 351 So.2d 73,
75 (Fla. 1st DCA 1977). Accordingly, we
reverse the order and remand with di-
-rections that DER issue a permit subject to


the hearing officer's recommended condi-
tions: (1) that the landowners install cul-
verts or other similar structures of appro-
priate size to facilitate an adequate ex-
change of water between the canals on the
north and south sides of the causeway, the
number and size 'of the culverts or other
structures to be determined by DER; (2)
that the fill or spoil resulting from the
dredging of the canal not be placed on Big
Pine Island or any surrounding property at
any elevation below 59.5-feet in elevation;
and (3) that the applicants utilize equip-
ment including, but not limited to, turbidity
curtains to keep turbidity at a minimum
during the dredging process.
REVERSED AND REMANDED for fur-
ther proceedings consistent with this opin-
ion.

McCORD, LARRY G. SMITH and SHIV-
ERS, JJ., concur.









HALL TRUCK SALES, INC, Appellant,
Sv. ..
WILDER MOBILE HOMES,
INC, Appellee.
No-80-2257.


District Court'of Appeal of
Second District.


Florida,-


Aug. 14, 198L.
S Rehearing Denied Sept. 3, 198L


S eller of motor grader appealed from
judgment entered by the Circuit Court,
Hillsborough County, 0. D. Howell, Jr, J,
adverse to seller's action to collect on dis-
honored check. The District Court of Ap
peal, Ryder, J., held that defect in grader,
which was functionally basic to operation of
grader in that defect prevented gader


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