04/19/2000
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
CLERK'S ORIGINAL
3301 Gun Club Road, West Palm Beach, Florida 33406 . (561) 686-8800 . FL WATS 1-800-432-2045 . TDD (561) 697-2574
Mailing Address: PO, Box 24680, West Palm Beach, FL 33416-4680 . www,sfwmd,gov
May 1, 2000
CON 24-06-04
Account Code - 00059
Monroe County
c/o David Koppel, County Engineer
5100 College Road
Key West, Florida 33040
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Dear Mr. Koppel:
CONSENT AGREEMENT
Subject:
Final Agency Action,
Notice of Violation,
Marathon Park Phase I,
Monroe County,
Sec. 10/Twp. 66S/Rge.32E
Order No. SFWMD 2000-53 CO-ERP
The purpose of this letter is to complete the resolution of the
violation previously identified by the South Florida Water
Management District ("District") in the Notice of Violation dated
March 21, 2000 a copy of which is attached. The "Works" addressed
in the Notice of Violation include clearing, grading and filling.
The proposed settlement includes:
1. Payment of Nine Thousand Dollars ($9,000.00) in civil
penalty.
2 . Payment of One Thousand Dollars ($1,000.00) in staff
investigative costs and attorney fees.
The total amount is Ten Thousand Dollars ($10,000.00). This
payment is to be made by certified check or money order to the
South Florida Water Management District, 3301 Gun Club Road, Post
Office Box 24680, West Palm Beach, Florida 33416-4680, to the
attention of Rudy Smith, Sr. Regulatory Supervisor, Environmental
Resource Regulation Department. The total payment is due wi thin
fourteen (14) days of execution of this agreement by the
District's Governing Board.
GOVERNING BOARD
EXECUTIVE OFFICE
Michael Collins, Chairman
Michael D, Minton, Vice Chairman
Mitchell W, Berger
Vera M, Carter
Gerardo B, Fernandez
Patrick J, Gleason
Nicolas J, Gutierrez, Jr,
Harkley R. Thornton
Trudi K, Williams
Frank R. Finch, P,E" Exewlive Director
James E, Blount, Chief of Slaff
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Marathon Park Phase I
Order No.
May 1, 2000
Page 2
Your execution of this short form consent agreement constitutes
your acknowledgement to the terms of the order. This order will
then be presented to the District's Governing Board with a staff
recommenda tion for approval. The terms and conditions of which
may be enforced in a court of competent jurisdiction pursuant to
Sections 120.69, 373.129, and 373.136, Florida Statutes.
Without admitting liability, you have provided the District
assurances of good faith compliance with all agreements entered
into between yourselves and the District in consideration for the
District not taking action to seek judicial imposition of damages,
or civil penalties for the violation described above. By signing
this letter, you waive your rights set forth in the Notice of
Rights attached hereto and incorporated by reference. If you do
not sign and return this letter to the South Florida Water
Management District, at the address given above, within seven (7)
days of receipt it will be assumed that you are not interested in
settling this matter according to the terms described herein.
Subsequently, this matter would then be referred to the District's
Office of Counsel with a recommendation that formal enforcement
action be taken against you.
If you have any questions please contact
Environmental Analyst at (561) 682-6208.
cooperation in this matter is appreciated.
Mr. Stacy Myers,
Your attention
Sr.
and
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gulatory Supervisor
Resource Compliance Division
Florida Water Management District
RS/sm
Attachment(s)
DONE AND SO ORDERED at ~e t Palm Beach,
Florida, this IJ'/'i..J day of _ 2000.
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Palm Beach County,
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
BY ITS VERN~G BOARD
BY:
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RESPONDENT
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c: John Fumero, SFWMD, Office of Counsel
Karen Cabanas
FILED WITH THE CLERK OF THE SOUTH
flORIDA WATER MANAGEMENT DISTRICT
ON
BY
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SOUTH FLORIDA WATER MANAGEMENT DISTRICT
DOC) S'9
33(11 Gun Club [{(lad, Wl'~t 1'.11111 Bl'ach, Florida 33406 . (561) 686-8800 . Fl WATS 1-800-432-2045 . TOO (561) 697-2574
Mailing Addrl'ss: P,O, Bo, 24680, Wl.~t Pillm B'~ilCh, FL 33416-4680 . ww\\',sfwl11d,go\'
CON 24-06-04
March 21, 2000
Monroe County Board of County Commissioners
c/o David Koppel, County Engineer
5100 College Road
Key West, Florida 33040
Dear Mr. Koppel:
NOTICE OF VIOLATION
Subject:
Construction Without a Permit,
Marathon Park Phase I
ERP Application No. 000110-5
Monroe County
Sec.10/Twp.66S/Rge.32E.
A field inspection by District staff indicates that you have
v.:..ola-ced sec-::ion 373.413, Fla. Stat., and rule 40E-4.041, Fla.
Admin. Code, for construction of "works" at the above location
without a permit authorization from the South Florida Water
Management Distri ct. "Works" are defined in section 373, Fla.
Stat. The "works" on this project include, but are not limited to
clearing, grading and filling of the property.
As a result of this violation, the District will seek civil
penalties and recovery of staff investigative costs and may
require restoration of the site. The specific terms for
resolution of this violation will be forwarded to you shortly in
the form of a settlement letter. Please be advised that the
0istrict is authorized under section 373.129, Fla. Stat. to se8k
civil penalties and to recover costs such as staff investigative
elme and attorney fees. Yurthermore, should you continue to
vi0late section 373.413, Fla. Stat., and 40E-4. 041, Fla. Admin.
Code, this District will take immediate action to mandate
compliance.
GO\ Li~.\l.\'C; H(),.'..;~rJ
Exhibit B
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Marathon Park Phase I
March 21, 2000
Page 2
If you have any questions please contact Mr.
682-6208. Your attention and cooperation in
appreciated
nior Regulatory Supervisor
Resource Compliance Division
RS/sm
CERTIFIED MAIL NO. Z 196 413 195
c: Mr. J. Fumero, SFWMD, Office of Counsel
Mr. Ber~ Bender, Bender and Associates
Stacy Myers (561)
this matter is
"
NOTICE OF RIGHTS
NOTICE OF RIGHTS
Section 120.569(1), Fla. Stat. (1997), requires that "each notice shall inform the recipient of any
administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall
indicate the procedure which must be followed to obtain the hearing or judicial review" and shall state the
time limits which apply." Please ,note that this Notice of Rights is not intended to provide legal advice. Not
all the legal proceedings detailed below maybe an applicable or appropriate remedy. You may wish to
consult an attorney regarding your legal rights.
Petition for Administrative Proceedings
1. A person whose substantial interests are affected by the South Florida Water Management
District's (SFWMD) action has the right to request an administrative hearing on that action. The affected
person may request either a formal or an informal hearing, as set forth below. A point of entry into
administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also
published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109), as set forth below.
Petitions are deemed filed upon receipt of the original documents by the SFWMD Clerk.
a. Formal Administrative Hearinq: If a genuine issue(s) of material fact is in dispute, the
affected person seeking a formal hearing on a SFWMD decision which does or may determine their
substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or
for mediation pursuant to Section 120.573, Fla. Stat. within 21 days, except as provided in subsections c. and
d. below, of either written notice through mail or posting 'or publication of notice that the SFWMD has or
intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-
106.201 (2). Fla. Admin. Code, a copy of the which is attached to this Notice of Rights.
b. Informal Administrative Hearinq: If there are no issues of material fact in dispute, the
affected person seeking an informal hearing on a SFwrv1D decision which does or may determine their
substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(2), Fla. Stat. or
f _ r mediation pursuant to Section 120,573, Fla. Stat. within 21 days except as provided in subsections c. and
d. below, of either written notice through mail or posting or publication of notice that the SFVJr\i\O has or
intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-
106,301 (2), Fla. Admin. Code, a copy of the which is attached to this Notice of Rights,
c. Administrative Comolaint and Order.
If a Respondent objects to a SFWMD Administrative Complaint and Order, pursuant to Section 373.119, Fla. Stat.
(1997), the person named in the h1ministrative Complaint and Order may file a petition for a hearing no later
than 14 days after the date such order is served. Petitions must substantially comply with the requirements of
either subsection a. or b. above.
d. St, '--andsEnvironmental Rescue' permit: Pursuant to Section 373427, Fla. Stat., and Rule
40E-1.511(3), Fla. Admin. Code (also published as an exception to the Uniform Rules of Procedure as Rule
40E-0.109(2)(c)), a petition objecting to the SFWMD's agency action regarding consolidated applications for
Environmental Resource Permits and Use of Sovereign Submerged Lands (SLERPs), must be filed within 14
days of the notice of consolidated intent to grant or deny the SLERP. Petitions must substantially comply with
the requirements of either subsection a. or b. above.
e. t:meraencv Authorization and Order.
A person whose substantial interests are affected by a SFWMD Emergency Authorization and Order, has a right to
file a petition under Sections 120,569, 120.57(1), and 120.57(2) Fla. Stat., as provided In subsections a. and
0. above. However, the person, 01 tile agent of the person re~.;;:;:1sible for causing or contribe,':':; to the
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emergency conditions shall take whatever action necessary to cause immediate compliance with the terms of
the Emergency Authorization and Order.
f. Order for Emeraencv Action: A person whose substantial interests are affected by a SFWMD
Order for Emergency Action has a right to file a petition pursuant to Rules 28-107.005 and 40E-1.611, Fla.
Admin. Code, copies of which are attached to this Notice of Rights, and Section 373.119(3), Fla. Stat., for a
hearing on the Order. Any subsequent agency actian or proposed agency action to Initiate a formal
revocation proceeding shall be separately noticed pursuant to section g. below.
g. Permit Susoension. Revocation. Annulment. and VVithdrawal: If the SFWMD Issues an
administrative complaint to suspend, revoke, annul, or withdraw a permit, the permittee may request a
hearing to be conducted in accordance with Sections 120.569 and 120.57, Fla. Stat., within 21 days of either
written notice through mail or posting or publication of notice that the SFWMD has or intends, to take final
agency action. Petitions must substantially comply with the requirements of Rule 28-107.004(3), Fla. Admin.
Code, a copy of the which is attached to this Notice of Rights.
2. Because the administrative hearing process is designed to formulate final agency action, the
filing of a petition means that the SFWMD's final action may be different from cthe position taken by it
previously. Persons whose substantial interests may be affected by any such final decision of the
SFWMD sha1lhave, pursuant to Rule 40E-1.511 (2), Fla. Admin. Code (also published as an exception to
the Uniform Rules of Procedure as Rule 40E-0.109(2)(c)), an additional 21 days from the date of receipt
of notice of said decision to request an administrative hearing. However, the scope of the administrative
hearing shall be limited to the substantial deviation.
3. Pursuant to Rule 40E-1.511 (4), Fla. Admin. Code, substantially affected persons entitled to
a hearing pursuant to Section 120.57(1), Fla. Stat., may waive their right to such a hearing and request
an informal hearing before the Goveming Board pursuant to Section 120.57(2), Fla. Stat., which may be
granted at the ~ption of the Goveming Board. .
4. Pursuant to Rule 28-106.111 (3), Fla. Admin. Code, persons may file with the SFWMD a
request for extension of time for filing a petition. The SFWMO, for good cause shown, may grant the
extension. The request for extension must contain a certificate that the petitioner has consulted with all
other parties, if any, conceming the extension and that the SFWMO and all other parties agree to the
extension.
I.
II. CIRCUIT COURT
5. Pursuant to Section 373.617, Fla. Stat., any substantially affected person who claims that fin~1
agency action of the SFWMO relating to permit decisions constitutes an unconstitutional taking of property
without just compensation may seek judicial review of the action in circuit court by filing a civil action in the
circuit court in the judicial circuit in which the affected property is located within 90 days of the rendering of
the SFWMO's final agency action.
6. Pursuant to Section 403.412, Fla. Stat., any citizen of Florida may bring an action for injunctive
relief against the SFWMD to compel the SFWMD to enforce the laws of Chapter 373, Fla. Stat., and Tille
40E, Fla. Adr::!n Ccd~ The complaining party mu~,t file with the SFWMO Clerk a verified complaint setting
forth the facts upon which the complaint is based and the manner in which the complaining party is affected.
If the SFWMD does not take appropriate action on the complaint within 30 days of receipt, the complaining
party may then file a civil suit for injunctive relief in the 1Sltt Judicial Circuit in and for Palm Beach County or
circuit court in the county where the cause of action allegedly occurred.
7. Pursuant to Section 373.433, Fla. Stat., a private citizen of Florida may file suit in circuit court to
require the abatement of any stormwater management system, dam, impoundment, reselVoir, appurtenant
wor1<. or works that violate the provisions of Chapter 373, Fla. Stat.
DISTRICT COURT OF APPEr',,_
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8. Pursuant to Section 120.68, Fla. Stat., a party who is adversely affected by final SFWMD action
may seek judicial review of the SFWMD's final decision by filing a notice of appeal pUrsuant to Florida Rule of
Appellate Procedure 9.110 in the Fourth District Court of Appeal or in the appellate district where a party
resides and filing a second copy of the notice with the SFWMD Clerk within 30 days of rendering of the final
SFWMD action.
LAND AND WATER ADJUDICATORY COMMISSION
9. A party to a .proce~ding. below" may seek review by the Land and Water Adjudicatory
Cornrnission (LAWAC) of SFWMD's final agency action to detennine if such action is consistent with the
provisions and purposes of Chapter 373, Fla. Stat. Pursuant to Section 373.114, Fla. Stat., and Rules 42-
2.013 and 42-2.0132, Fla. Admin. Code, a request for review of (a) an order or rule of the SFWMD must be
filed with LAWAC within 20 days after rendition of the order or adoption of the rule sought to be reviewed; (b)
an order of the Department of Environmental Protection (DEP) requiring amendment or repeal ~f a SFWMD
rule must be filed with LAWAC within 30 days of rendition of the DEP's order, and (c) a SFWMD order
entered pursuant to a formal administrative hearing under Section 120.57(1), Fla. Stat., must be filed no later
than 20 days after rendition of the SFWMD's final order. Simultaneous with filing, a copy of the request for
review must be served on the DEP Secretary, any person named in the SFWMD or DEP final order, and all
parties to the proceeding below. A copy of Rule 42-2.013, Fla. Admin. Code is attached to this Notice of
Rights.
l.
II.
I.
PRIVATE PROPERTY RIGHTS PROTECTION ACT
10. A property owner who alleges a specifiC action of the SFWMD has inordinately'burdened an
existing use of the real property, or a vested right to a specific use of the real property, may file a daim in the
circuit court where the real property is located within 1 year of the SFWMD action pursuant to the procedures
set forth in Subsection 70.001 (4)(a), Fla. Stat.
LAND USE AND ENVIRONMENTAL DISPUTE RESOLUTION
11. A property owner who alleges that a SFWMD develupment order (as that tenn is defined in Section
70.51 (2)(a), Fla. Stat. to indude permits) or SFWMD enforcement action is unreasonable, or unfairly burdens
the use of the real property, may file a request for relief with the SFWMD within 30 days of receipt of the
SFWMD's order or notice of agency action pursuant to the procedures set forth in Subsections 70.51(4) and
(6), Fla. Stat.
I.
II. MEDIATION
12. A person whose substantial interests are, or may be, affected by the SFWMD's action may
choose mediation as an alternative remedy under Section 120.573, Fla. Stat. Pursuant to Rule 28-
106.111 (2), Fla. Admin. Code, the petition for mediation shall be filed within 21 days of either written notice
through mail or posting or publication of notice that the SFWMD has or intends to take final agency actioh.
Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result
in settlement.
Pursuant to Rule 28-106.402, Fla. Admin. Code, the contents of the petition for mediation shall contain the
following information:
(1) the name, address, and telephone number of the person requesting mediation and that
person's representative. if any;
(2) :] statement of the prelimir;?;, agency action;
(3) an explanation of how the person's substantial interests will be affected by the agency
determination; and
(4) a statement of relief sought.
As provided in Section 120.573, Fla. Stat. (1991), the timely agreement of all the parties to mediate will toll
the time limitations Imposed by Sections 120.569 and 120.57, Fla. Stat., for requesting and holding an
administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60
days of the execution of the agreement. If mediation results In settlement of the dispute, the SFWMD must
enter a final order incorporating the agreement of the parties. Persons whose substantial Interest will be
affected by such a modified agency decision have a right to petition for hearing within 21 days of receipt of
the final order in accordane'e; with the requirements of Sectiui;s 120.569 and 120.57, Fla. 5t2:.. and SFWMD
Rule 28-106.201(2), Fla. Admin. Code. If mediation terminates without settlement of the dispute. the
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SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and
120.57. Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that
then will apply for challenging the agency action. .
J. VARIANCES AND WAIVERS
13. A person who is subject to regulation pursuant to a SFWMD rule and believes:the
application of that rule will create a substantial hardship or will violate principles of fairness (as those terms
are defined in Subsection 120.542(2), Fla. Stat.) and can demonstrate that the purpose of the underlying
statute will be or has been achieved by other means, may file a petition with the SFWMD Cler1<. requesting a
variance from or waiver of the SFWMD rule. Applying for a variance or waiver does not substitute or extend
the time for filing a petition for an administrative hearing or exercising any other right that a person may have
concerning the SFWMD's action. Pursuant to Rule 28-104.002(2), Fla. Admin. Code, the petition must
inclu~e the following information:
(a) the caption shall read:
Petition for (Variance from) or (Naiver of) Rule (Citation)
(b) The name, address, telephone number and any facsimile number of the petitioner;
(c) The name, address telephone number and any facsimile number of the attomey or qualified
representative of the petitioner, (tf any);
(d) the applicable rule or portion of the rule;
(e) the citation to the statue the rule is implementing;
(f) the type of action requested;
(9) the specific facts that demonstrate a substantial hardship or violation of principals of
fairness that would justify a waiver or variance for the petitioner;
(h) the reason why the variance or the waiver requested would serve the purposes of the
underlying statute; and _ .
(i) a statement of whether the variance or waiver is permanent or temporary. If the variance or
waiver is temporary, the petition shall indude the dates indicating the duration of the requested variance or
waiver. -
A person requesting an emergency variance from or waiver of a SFWMD rule must c1ear1y so state in the
caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. pursuant to Rule 28-
104.004(2), Fla. Admin. Code, the petition must also indude:
a) the specific facts that make the situation an emergency; and
b) the specific facts to show that the petitioner will suffer immediate adverse effed unless the
variance or waiver is issued by the SFWMD more expeditiously than the applicable timeframes set forth in
Section 120.542, Fla. Stat.
WAiVER OF RlGHTS
14. Failure to observe the relevant time frames prescribed above will constitute a waiver of such
right.
INITIATION OF PROCEEDINGS
(INVOLVING DISPUTED ISSUES OF MATERIAL FACT)
(2) All petitions filed under these rules shall contain:
The name and address of each agency affected and each agency's file or identification number, if known;
The name, address, and telephone number of the petitioner; the name, 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, and an explanation of how the petitioner's substantial interests will be
affected by the agency determination;
A statement 0; when and how the petitioner rev;!ved notice of the agency decision;.
A statement of all disputed issues of material fact. If there are none, the petition must so indicate;
A concise statement of the ul1imate facts' alleged, as well as the rules and statutes which entitle the petitioner
to relief; and
A demand for relief.
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,
28-106.301 INITIATION OF PROCEEDINGS
(NOT UWOLVlNG DISPUTED Issues OF MATERIAL FACT)
(2) All petitions filed under these rules shall contain:
The name and address of each agency affected and each agency's file or identification number, if known;
The name, address, and telephone number of the petitioner, the name, address, and telephone number of
the petitioner's representative, if any, which shall be the address for service purposes during the
<:curse of the proceeding, and an explanation of how the petitioner's substantial interests will be
affected by the agency determination;
A statement of when and how the petitioner received notice of the agency decision;
A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner
to relief; and
A demand for relief.
28-107.004 SUSPENSION, REVOCATION, ANNULMENT, OR WITHDRAWAL
(3) Requests for hearing filed in accordance with this rule shall include:
The name and address of the party making the request, for purposes of service;
A statement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not
involving disputed issues of material fact; and
A reference to the notice, order to show cause, administrative complaint, or other communication that the
party has received from the agency.
42-2.013 REQUEST FOR REVIEW PURSUANT TO SECTION 373.114 OR 373.217
(1) In any proceeding arising under Chapter 373, F.S., review by the Florida Land and Water Adjudicatory
Commission may be initiated by the Department or a party by filing a request for such review with the
Secretary of the Commission and serving a copy on any person named in the rule or order, and on all
parties to the proceeding which resulted in the order sought to be reviewed. A certificate of service showing
completion of service as required by this subsection shall te a requirement for a determination of sufficiency
under Rule 42-2.0132. Failure to file the request with the Commission within the time period provided in
Rule 42-2.0132 shall result in dismissal of the request for review.
(2) The request for review shall identify the rule or order requested to be reviewed, the proceeding in which
the rule or order was entered and the nature of the rule or order. A copy of the rule or order sought to be
reviewed shall be attached. The request for review shall state with particularity:
(3) How the order or rule conflicts with the requirements, provisions and purposes of Chapter 373, F.S.,
or rules duly adopted thereunder:
(b) How the rule or order sought to be reviewed affects the interests of the party seeking review; ."
(e) The eral or w~tten statement, swam or unswom, which was submitted to the agency concerning the matter
to be reviewed and the date and location of the statement, if the individual or entity requesting the review
has not participated in a proceeding previously instituted pursuant to Chapter 120, F.S., on the order for
which review is sought;
(d) If review of an order is being sought, whether and how the activity authorized by the order would
substantially affect natural resources of statewide or regional significance, or whether the order raises
issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance
frv::"' a standpoint 0: 3gency preCf:!::'1t, and all the factual bases in the record which the petitioner daims
support such determination(s); and
(e) The action requested to be taken by the Commission as a result of the review, whether to rescind
or modify the order, or remand the proceeding to the water management district for further action, or to
require the water management district to initiate rulemaking to adopt, amend or repeal a rule.
28-107.005 EMERGENCY ACTION
(1) If the agency finds that Immediate serlo us danger to the public health, safety, or welfare requires
emergency action, the agency shall summarily suspend, limit, or restrict a license.
the 14-day notice requirement of Section 120.589(2)(b), F. S., does not apply and shall not be
construed to prev':'I.:' a hearing at the earliest time ,<2dicable upon request of an w'(Jrieved party.
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(3) Unless otherwise provided by law, within 20 days after emergency action taken pursuant to paragraph (1) of
this rule, the agency shall initiate a formal suspension or revocation proceeding in compliance with Sections
120.569,120.57. and 120.60, F.S.
40E-1.611 EMERGENCY ACTION
(1) An emergency exists when immediate action is necessary to protect public health, safety or
welfare; the health of animals, fish or aquatic life; the works of the District; a public water supply, or
recreational, commercial, industrial, agricultural or other reasonable uses of land and water resources.
(2) The Executive Director may employ the resources of the District to take whatever remedial action
necessary to alleviate the emergency condition without the issuance of an emergency order, or In the
event an emergency order has been issued, after the expiration of the requisite time for compliance with
that order.
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