CONSENT ORDER OGC FILE NUMBER 99-0124
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
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Southwest District TClmpa
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
IN THE OFFICE OF THE
SOUTHWEST DISTRICT
Complainant,
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CONSENT ORDER
OGC FILE NO. 99-0124
vs.
CITY OF CLEARWATER, FLORIDA
Respondent.
This Consent Order is made and entered into between the State of Florida Department
of Environmental Protection ("Department") and The City of Clearwater, Florida,
("Respondent") to reach settlement of certain matters at issue between the Department and
Respondent.
The Department finds and the Respondent admits the following:
1. The Department is the administrative agency of the State of Florida having the
power and duty to protect Florida's air and water resources and to administer and enforce Part
IV of Chapters 373 and 403, Florida Statutes, and the rules promulgated and authorized
thereunder, Florida Administrative Code Title 62. The Department has jurisdiction over the
matters addressed in this Consent Order.
2. Respondent is a entity within the meaning of Section 373.019(12), Florida
Statutes.
3. Respondent is the owner of property located within the defined boundaries of
the City of Clearwater, Florida, as shown in Exhibit A of this Order.
4. Department personnel determined through various inspections and permit
reviews that the City failed to comply with the conditions of permits reviewed. A Warning
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OGC # 99-0124}
City of Clearwater, Florida (Global Resolution)
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Letter, Warning Letter No. 97-122-DF/SL52SWD, was sent to the City on September 23, 1997,
outlining the failure to comply with 25 permits obtained from the Department. A copy of the list
of permits that are not in compliance (derived from the Warning Letter listed above) is attached
as Exhibit B of this Order. The activities authorized by the permits were conducted on the
above described property within the landward extent of all related waterbodies within the City
of Clearwater boundary which are waters of the State, as defined by Florida Law.
Having reached a resolution of the matter Respondent and the Department
mutually agree and it is,
ORDERED:
6. The total calculated civil penalty for the above referenced violation is
$920,000.00. Within 90 days of the effective date of this Consent Order, Respondent shall
pay the sum of $20,000 in partial settlement of the matters addressed in this Consent Order.
This amount is for costs and expenses incurred by the Department during the investigation of
this matter and the preparation and tracking of this Consent Order. Payment shall be made by
cashier's check or money order. The instrument shall be made payable to the "Department of
Environmental Protection" and shall include thereon the OGC number assigned to this
Consent Order and the notation "Ecosystem Management and Restoration Trust Fund". The
payment shall be sent to Southwest District, Submerged Lands and Environmental Resources
Program, 3804 Coconut Palm Drive, Tampa, FL 33619.
7. Within 180 days of the effective date of this Consent Order, Respondent shall
submit to the Department for approval a proposal for the design and/or construction of a
project or projects in the City of Clearwater, Florida, which will benefit water quality within the
City limits and/or enhance and create wetlands as defined by Rule within Clearwater, Florida.
The City acknowledges that the project(s) must have a total cost of one and one-half times the
sum of $900,000 ($1,350,000) to satisfy the in-kind settlement guidelines of the Department
should the City design and construct a project which involves exclusively City of Clearwater
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personnel. If the City should use personnel contracted by private companies, Le. non-City
personnel, who will design and construct the project, the total cost of the project shall be
$900,000 or greater. In the event that a project meeting the above criteria can not be agreed
upon for approval by the Department within one hundred twenty (120) days after the proposal
has been submitted, the City of Clearwater shall pay the Department the sum of $900,000.
The instrument shall be made payable to the "Department of Environmental Protection" and
shall include thereon the OGC number assigned to this Consent Order and the notation
"Ecosystem Management and Restoration Trust Fund". The payment shall be sent to the
Department of Environmental Protection, Southwest District, Submerged Lands and
Environmental Resources Program, 3804 Coconut Palm Drive, Tampa, Florida, within 30 days
of notification by the Department that the project(s) was not approved within the stated time
frame.
8. Respondent agrees to pay the Department stipulated penalties in the amount of
$1,000 per day for each and every day Respondent fails to timely comply with any of the
requirements of paragraphs 6 and 7 of this Consent Order. A separate stipulated penalty shall
be assessed for each violation of this Order. Within 30 days of written demand from the
Department, Respondent shall make payment of the appropriate stipulated penalties to the
''The Department of Environmental Protection" by cashier's check or money order and shall
include thereon the OGC number assigned to this Consent Order and the notation "Ecosystem
Management and Restoration Trust Fund." The Department may make demands for payment
at any time after violations occur. Nothing in this paragraph shall prevent the Department from
filing suit to specifically enforce any of the terms of this Consent Order. Any penalties
assessed under this paragraph shall be in addition to the settlement sum agreed to in
paragraphs 6 and 7 of this Consent Order. If the Department is required to file a lawsuit to
recover stipulated penalties under this paragraph, the Department will not be foreclosed from
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seeking civil penalties for violations of this Consent Order in an amount greater than the
stipulated penalties due under this paragraph.
9. If any event occurs which causes delay, or the reasonable likelihood of delay, in
complying with the requirements or deadlines of this Consent Order, Respondent shall have
the burden of proving that the delay was, or will be, caused by the circumstances beyond the
reasonable control of Respondent and could not have been or cannot be overcome by
Respondent's due diligence. Economic circumstances shall not be considered circumstances
beyond the control of Respondent, nor shall the failure of a contractor, subcontractor,
materialman or other agent (collectively referred to as "contractor") to whom responsibility for
performance is delegated to meet contractually imposed deadlines be a cause beyond the
control of Respondent, unless the cause of the contractor's late performance was also beyond
the contractor's control. Upon occurrence of an event causing delay, or upon becoming aware
of a potential for delay, Respondent shall notify the Department orally within 24 hours or by the
next working day and shall, within seven days of oral notification to the Department, notify the
Department in writing of the anticipated length and cause of the delay, the measures taken or
to be taken to prevent or minimize the delay, and the timetable by which Respondent intends
to implement these measures. If the parties can agree that the delay or anticipated has been
or will be caused by circumstances beyond the reasonable control of Respondent, the time for
performance hereunder shall be extended for a period equal to the agreed delay resulting from
such circumstances. Such agreement shall adopt all reasonable measures necessary to avoid
or minimize delay. Failure of Respondent to comply with the notice requirements of this
paragraph in a timely manner shall constitute a waiver of Respondent's right to request an
extension of time for compliance with the requirements or deadlines of this Consent Order,
10 Respondent shall allow all authorized representatives of the Department access
to the property at reasonable times for purposes of determining compliance with this Consent
Order and the rules of the Department.
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11. The Respondent is hereby advised that Florida law states: "No person shall
commence any excavation, construction or other activity involving the use of sovereign or
other lands of the State, title to which is vested in the Board of Trustees of the Internal
Improvement Trust Fund or the Department of Natural Resources under Chapter 253, Florida
Statutes, until such person has received from the Board of Trustees of the Internal
Improvement Trust Fund the required lease, license, easement or other form of consent
authorizing the proposed use." If such work is done without consent, a fine for each offense in
an amount of up to $10,000.00 may be imposed.
12. Entry of this Consent Order does not relieve Respondent of the need to comply
with applicable federal, state or local laws, regulations or ordinances.
13. The terms and conditions set forth in this Consent Order may be enforced in a
court of competent jurisdiction pursuant to Sections 120.69 and 373.129, Florida Statutes.
Failure to comply with the terms of this Consent Order shall constitute a violation of Section
373.430, Florida Statutes.
14. Respondent is fully aware that a violation of the terms of this Consent Order may
subject Respondent to judicial imposition of damages, civil penalties of up to $10,000 per
offense and criminal penalties.
15. Respondent shall publish the fOllowing notice in a newspaper of daily circulation
in Pinellas County, Florida. The notice shall be published one time only within seven (7) days
after the effective date of the Consent Order by the Department.
STA TE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
NOTICE OF CONSENT ORDER
The Department of Environmental Protection gives notice of agency action of entering
into a Consent Order with the CITY OF CLEARWATER, FLORIDA pursuant to Section
120.57(4), Florida Statutes. The Consent Order addresses the failure to comply with twenty-
five (25) permits obtained from the Department within the City boundaries. The Consent Order
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is 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.
Persons whose substantial interests are affected by this Consent Order have a right to
petition for an administrative hearing on the Consent Order. The Petition must contain the
information set forth below and must be filed (received) in the Department's Office of General
Counsel, 3900 Commonwealth Boulevard, MS-35, Tallahassee, Florida 32399-3000, within 21
days of receipt of this notice. A copy of the Petition must also be mailed at the time of filing to
the District Office named above at the address indicated, Failure to file a petition within the 21
days constitutes a waiver of any right such person has to an administrative hearing pursuant to
Sections 120.569 and 120.57, F.S.
The petition shall contain the following information: (a) The name, address, and
telephone number of each petitioner; the Department's identification number for the Consent
Order and the county in which the subject matter or activity is located; (b) A statement of how
and when each petitioner received notice of the Consent Order; (c) A statement of how each
petitioner's substantial interests are affected by the Consent Order; (d) A statement of the
material facts disputed by petitioner, if any; (e) A statement of facts which petitioner contends
warrant reversal or modification of the Consent Order; (f) A statement of which rules or
statutes petitioner contends require reversal or modification of the Consent Order; (g) A
statement of the relief sought by petitioner, stating precisely the action petitioner wants the
Department to take with respect to the Consent Order.
If a petition is filed, the administrative hearing process is designed to formulate agency
action. Accordingly, the Department's final action may be different from the position taken by it
in this Notice. Persons whose substantial interests will be affected by any decision of the
Department with regard to the subject Consent Order have the right to petition to become a
party to the proceeding. The petition must conform to the requirements specified above and
be filed (received) within 21 days of receipt of this notice in the Office of General Counsel at
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the above address of the Department. Failure to petition within the allowed time frame
constitutes a waiver of any right such person has to request a hearing under Sections 120,569
and 120.57, Florida Statutes, and to participate as a party to this proceeding. Any subsequent
intervention will only be at the approval of the presiding officer upon motion filed pursuant to
Rule 60Q-2.010, Florida Administrative Code.
A person whose substantial interests are affected by the Consent Order may file a
timely petition for an administrative hearing under Sections 120.569 and 120.57, Florida
Statutes, or may choose to pursue mediation as an alternative remedy under Section 120.573
before the deadline for filing a petition. Choosing mediation will not adversely affect the right
to a hearing if mediation does not result in a settlement. The procedures for pursuing
mediation are set forth below.
Mediation may only take place if the Department and all the parties to the proceeding
agree that mediation is appropriate. A person may pursue mediation by reaching a mediation
agreement with all parties to the proceeding (which include the Respondent, the Department,
and any person who has filed a timely and sufficient petition for a hearing) and by showing
how the substantial interests of each mediating party are affected by the Consent Order. The
agreement must be filed in (received by) the Office of General Counsel of the Department at
3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000, by the
same deadline as set forth above for the filing of a petition.
The agreement to mediate must include the following:
(a) The names, addresses, and telephone numbers of any persons who may attend
the mediation;
(b) The name, address, and telephone number of the mediator selected by the parties,
or a provision for selecting a mediator within a specified time;
(c) The agreed allocation of the costs and fees associated with the mediation;
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(d) The agreement of the parties on the confidentiality of discussions and documents
introduced during mediation;
(e) The date, time, and place of the first mediation session, or a deadline for holding
the first session, if no mediator has yet been chosen;
(f) The name of each party's representative who shall have authority to settle or
recommend settlement; and
(g) Either an explanation of how the substantial interests of each mediating party will
be affected by the action or proposed action addressed in this notice of intent or a statement
clearly identifying the petition for hearing that each party has already filed, and incorporating it
by reference.
(h) The signatures of all parties or their authorized representatives.
As provided in section 120.573 of the Florida Statutes, the timely agreement of all
parties to mediate will toll the time limitations imposed by sections 120.569 and 120.57 for
requesting and holding an administrative hearing, Unless otherwise agreed by the parties, the
mediation must be concluded within sixty days of the execution of the agreement. If mediation
results in settlement of the administrative dispute, the Department must enter a final order
incorporating the agreement of the parties. Persons whose substantial interests will be
affected by such a modified final decision of the Department have a right to petition for a
hearing only in accordance with the requirements for such petitions set forth above, and must
therefore file their petitions within 21 days of receipt of this notice. If mediation terminates
without settlement of the dispute, the Department shall notify all parties in writing that the
administrative hearing processes under Sections 120.569 and 120,57 remain available for
disposition of the dispute, and the notice will specify the deadlines that then will apply for
challenging the agency action and electing remedies under those two statutes.
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16. The Department hereby expressly reserves the right to initiate appropriate legal
action to prevent or prohibit any violations of applicable statues, or the rules promulgated
thereunder that are not specifically addressed in this Consent Order.
17. The Department, for and in consideration of the complete and timely
performance by Respondent of the obligations agreed to in this Consent Order, hereby waives
its right to seek judicial imposition of damages or civil penalties for alleged violations outlined in
this Consent Order. Respondent waives its right to an administrative hearing pursuant to
Sections 120.569 and 120.57, Florida Statutes, of the terms of this Consent Order.
Respondent acknowledges its right to appeal the terms of this Consent Order pursuant to
Section 120.68, Florida Statutes, but waives that right upon signing this Consent Order.
18. No modifications of the terms of this Consent Order shall be effective until
reduced to writing and executed by both Respondent and the Department.
19. The provisions of this Consent Order shall apply to and be binding upon the
parties, their officers, their directors, agents, servants, employees, successors, and assigns
and all persons, firms and corporations acting under, through or for them and upon those
persons, firms and corporations in active concert or participation with them.
20. All plans, surveys, monitoring and restoration reports, penalties, stipulated
penalties, costs and expenses, or other documents required by this Consent Order to be
submitted to the Department shall be sent to Southwest District Office, Submerged Lands and
Environmental Resources Program, 3804 Coconut Palm Drive, Tampa, Florida, 33619.
21. If all of the requirements of this Consent Order have not been fully satisfied,
Respondent shall, at least 14 days prior to a sale or conveyance of the property, (1) notify the
Department of such sale or conveyance, and (2) provide a copy of this Consent Order with all
attachments to the new owner,
22. This Consent Order is a settlement of the Department's civil and administrative
authority arising from Chapters 253, 373, 403 and 376, Florida Statutes, to pursue the
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allegations addressed herein. This Consent Order does not address settlement of any criminal
liabilities which may arise from Sections 403,161(3) through (5), 403.413(5), 403.727(3)(b),
376.302(3) and (4), 376.3071 (10), or Chapter 810, Florida Statutes, nor does.it address
settlement of any violation which may be prosecuted criminally or civilly under federal law.
23. This Consent Order is a final order of the Department pursuant to Section
120.52(7), Florida Statutes, and it is final and effective on the date filed with the Clerk of the
Department unless a Petition for Administrative Hearing is filed in accordance with Chapter
120, Florida Statutes. Upon the timely filing of a petition this Consent Order will not be
effective until further order of the Department.
FOR THE RESPONDENT:
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Countersigned:
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nan J. Au t
Mayor-Commissioner
:~ O~EARWA TER, FLORIDA
Michael J. Roberto
City Manager
Attest:
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City of Clearwater, Florida (Global Resolution)
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DONE AND ORDERED this
Florida.
day of
, 1999 in Tampa,
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
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Richard D. Garrity, h. .
Director of District a gement
Southwest District Office
cc: Larry Morgan, OGC, Tallahassee
Joseph Bachelor, USACE, Tampa
Tracey Hendron, USACE, Jacksonville
FILING AND ACKNOWLEDGEMENT
FILED, on this date, pursuant to 8120.52
Florida Statutes. with the designated Depart-
ment Clerk, receipt of which is hereby ac-
knOWiedged,~ ~8;'
~Ieik . Date
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Clearwater Global Penalty Sheet
Permit Number Project Name Fines - 7/28/98 Revised Fines - 8/12/98
522561803 Alligator Crk. Watermain Crossing 2844.75 2844.75
522615273 Clearwater Beach Rec. Center 3892.5 3892.5
522756993 Allen's Creek Gabions 9394 9394
522702913 Forest Run Park 399.25 150
522538773 Memorial Cause~aYJ:ishing Piers 2395 2395
-- ..-------- --- ---- ,-~ ---
522441043 Rainbow Drive at Allen's Creek 298.5 298.5
521490353 Drew Street Ditch Piping, McMullen Booth to Bayshore 449,25 449.25
-- -, ,-
521467093 _ Drew Street Ferry Dock 3447.75 3447.75
--
521446013 Spoil Island 25 33587.25 33587.25
-,
521610923 East WWTP Seawall and Outfall Line 5391 5391
521654753 Ross Norton Park 8547.75 8547.75
521730273 Alligator Creek Solid Waste Wall 598.5 598.5
522018533 RCP near Clearwater Country Club 598.5 598.5
521656613 Alligator Creek downstream of Village of Kapok 598.5 598.5
522006743 Island Estates Marina Dredging 208652 208652
521698993 Canterbury Drive 598.5 598.5
521936813 Edenville Ditch 1797 1797
r----
521707623 Druid Road Bridge Replacement 598.5 598.5
1---- - -,
521763933 2779-2815 Gulf to Bay 399.25 149.25
f-- ---,
521254593 Highland and Palmetto Detention Pond Excavation 449.25 449.25
c---
521739233 Subaqueous Watermain Crossing 449.25 449.25
522712263 Edgewater Drive Shoreline Restoration Project 2395 2395
521993529 Stevenson Creek - Phase II ' -- .---- -- --
114240.75 1797
521619369 Stevenson Creek - Phase I 785667.75 785667.75
'---, - ,- ~--
522127013 Landmark Drive Extension 11535 11535
f----- -- ~ -----. --.-- ~----- -
Total 1199224.75 1086281.75
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