Padron v. State

• Decision Date: 13 August 2014
• Docket Number: No. 3D13–2446.,3D13–2446.
• Citation: 143 So.3d 1037
• Parties: Elizabeth PADRON, Appellant, v. STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and Carl J. Ekblom, Appellees.
• Court: Florida District Court of Appeals

143 So.3d 1037

Elizabeth PADRON, Appellant,

v.STATE of Florida, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and Carl J. Ekblom, Appellees.

No. 3D13–2446.

District Court of Appeal of Florida,

Third District.

July 23, 2014.

Rehearing Denied Aug. 13, 2014.

The Silver Law Group, P.A., and Patricia M. Silver and John W. Annesser, Islamorada, for appellant.

Matthew Z. Leopold, Tallahassee, General Counsel, and David K. Thulman, Tallahassee, Senior Assistant General Counsel, for appellee State of Florida, Department of Environmental Protection; Hershoff, Lupino & Yagel, LLP, and James S. Lupino, and Brittany N. Miller, Tavernier, for appellee Carl J. Ekblom.

Before SUAREZ, ROTHENBERG and LOGUE, JJ.

ROTHENBERG, J.

Elizabeth Padron (“Padron”) appeals from a Final Order of the Department of Environmental Protection (“the DEP”) adopting the recommended order entered by an administrative law judge (“ALJ”) with the Division of Administrative Hearing (“DOAH”). The ALJ recommended that the DEP approve its earlier determination that Carl J. Ekblom (“Ekblom”) does not need to obtain an Environmental Resource Permit (“ERP”) to install a proposed cradle boat lift adjacent to an existing finger pier because Ekblom established the four criteria set forth in Rule 40E–4.051(3)(b) of the Florida Administrative Code,¹ including that the proposed cradle boat lift will not “create a navigational hazard.” We affirm.

I. Facts and Procedural History

Ekblom and Padron own adjacent lots that sit at the western end of Plantation Lake, a man-made canal in Islamorada. Both properties have marginal docks running along their shorelines that meet at an acute angle, and Padron has a 33–foot finger pier that juts out from the vertex of the angle. The north side of the finger pier faces Ekblom's property, whereas the south side faces Padron's property. Padron's immediate predecessor in interest (Buchanan) granted Ekblom an easement relating to the finger pier, which provides in part: “The parties agree that BUCHANAN, their heirs, successors and assigns, shall dock their boats on the south side of the dock and EKBLOM, their heirs, successors and assigns shall dock their boats on the north side of the dock.” (emphasis in original). In 2000, with the previous owner's permission, Ekblom installed a jet-ski lift on the finger pier, and since then, Ekblom has moored a 35 to 36–foot boat on the north side of the finger pier for over a decade without a navigational incident.

In August 2012, Ekblom filed an Environmental Resource Permit Application with the DEP to install the proposed cradle lift on the north side of the finger pier approximately two feet within Ekblom's property line in a location that will allow straight-in ingress and egress. The proposed cradle lift, which will basically consist of four pilings embedded into the man-made canal in the form of a rectangle with an aluminum mechanism that will lift Ekblom's boat in and out of the water, will not be attached to the finger pier.

Later that month, Celia Hitchins (“Ms. Hitchins”), an Environmental Specialist II with the DEP, notified Ekblom that an ERP is not needed for the proposed project because the four criteria set forth in Rule 40E–4.051(3)(b) were established.

Padron then petitioned for an administrative hearing challenging the DEP's determination and asserted that there are numerous disputed issues of fact, including whether the proposed cradle lift will “create a navigational hazard.” At a hearing before the ALJ, the parties' experts testified as to their understanding of the term “navigational hazard” because it is not defined in Rule 40E–4.051. Ekblom's expert, Robert Camuccio, testified that a “navigational hazard” is “[s]omething ... that the prudent mariner would have a difficult time navigating by safely.” The DEP's expert, Ms. Hitchins, defined “navigational hazard” as “something that would cause a safety issue. It would cause some sort of precluding of other vessels' access.” Similarly, Padron's expert, Edward Danti (“Mr. Danti”), defined “navigational hazard” as “something that either impedes or will cause hazard to vessels or other traffic in a particular location.”

Ms. Hitchins testified that the proposed cradle boat lift would not be any more intrusive than a boat moored in the same area. Similarly, Mr. Camuccio agreed that a portion of navigable water would be occupied regardless of how Ekblom's boat is secured—moored to the finger pier or placed on a cradle boat lift—and that occupying a portion of navigable water does not necessarily mean that a navigational hazard is created. Mr. Camuccio and Ms. Hitchins opined that the proposed cradle boat lift would not create a “navigational hazard,” whereas Padron's expert, Mr. Danti, opined that it would.

In June 2013, the ALJ issued his recommended order. The ALJ recognized that the parties presented conflicting expert testimony as to whether the cradle boat lift will create a “navigational hazard,” but he relied on the testimony presented by Ekblom's expert (Mr. Camuccio) and the DEP's expert (Ms. Hitchins) in finding that the cradle boat lift will not “create a navigational hazard.” The ALJ recommended that the DEP approve its earlier determination that Ekblom's proposed cradle boat lift is exempt from ERP requirements because the four criteria set forth in Rule 40E–4.051(3)(b) were met. In addressing whether the proposed cradle lift will “create a navigational hazard,” the ALJ made numerous factual findings, including that Ekblom has moored a 35 to 36–foot boat on the north side of the finger pier for the past twelve years without a navigational incident, but has since purchased a smaller boat; there are no channel markers in the middle of the basin; the basin's entrance is on the eastern end, not on the western end where the finger pier is located; the inlet into the basin is small, and therefore, the size of boats that can enter the basin is limited; the water in the basin is calm; when Ekblom's boat is on the cradle boat lift, the boat will be in the same position where Ekblom has moored his boat to the finger pier; the finger pier is located in an area where only a few boats would navigate; Ekblom's neighbor to the northeast, Mr. Wright, docks a 30–foot boat on the seawall of his house, and he has not objected to the proposed cradle boat lift although he has to back his boat away from the seawall to maneuver into the basin; Ekblom will never have to navigate his boat on the south side of the finger pier; and Ekblom will not use his marginal dock to moor a boat once the proposed cradle boat lift is installed. Based on these findings and the expert testimony of Ms. Hitchins and Mr. Camuccio, the ALJ determined that “the more persuasive evidence supports a conclusion that the boat lift will not cause a navigation hazard. Even if it arguably causes a slight inconvenience, this does not rise to the level of a navigational hazard.”

The ALJ also addressed a previous case before the DEP, Rosenblum v. Zimmet, 2007 WL 3087150, Case No. 06–2859 (Fla. DOAH Oct. 23, 2007), adopted,2007 WL 4984551, Case No. DEP07–1347 (Fla. DEP Dec. 2007). The ALJ determined that, although there are similarities between Rosenblum and the instant case, Rosenblum is distinguishable.

Padron filed numerous exceptions to the ALJ's recommended order. In the Final Order, the Secretary of the DEP denied all of Padron's exceptions, adopted the ALJ's recommended order in its entirety, and incorporated it into the Final Order. Padron's appeal followed.

“In an appeal from final administrative action, [an appellate] court reviews findings of fact made by the ALJ and adopted by the administrative agency to determine whether they are supported by competent, substantial evidence.” Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1082 (Fla. 2d DCA 2009); see also§ 120.68(7)(b), Fla. Stat. (2013); Agency for Persons with Disabilities v. C.B., 130 So.3d 713, 717 (Fla. 1st DCA 2013); U.S. Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012); Payne v. City of Miami, 52 So.3d 707, 711–12 (Fla. 3d DCA 2010). However, an appellate court reviews the agency's conclusions of law de novo. § 120.68(7)(d); C.D. v. Agency for Persons with Disabilities, 95 So.3d 383, 384 (Fla. 3d DCA 2012); U.S. Blood Bank, 85 So.3d at 1142; Peace River/Manasota Reg'l Water Supply Auth., 18 So.3d at 1082. Importantly, an “appellate court affords great weight to an agency's construction of a rule that the agency is charged with...