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Cause #: 97-189W
Caption: Department of Natural Resources v. Fortune
Administrative Law Judge: Rider
Attorneys: Hargis; Stefanovich
Date: April 29, 1999
ORDER
[NOTE: ON MAY 28, 1999, FORTUNE TOOK JUDICIAL REVIEW IN SPENCER CIRCUIT COURT 74C01 9905 CP 178. ON AUGUST 3, 1999 JUDGE ROELL SIGNED ORDER GRANTING STAY OF ENFORCEMENT OF FINAL ORDER OF THE NATURAL RESOURCES COMMISSION UNTIL FURTHER ORDER OF THE COURT. ON OCTOBER 17, 2000, JUDGE ROELL, AS TO BOTH PARTIES, ENTERED AN ORDER OF DISMISSAL WITH PREJUDICE. SEE ENTRY FOLLOWING ADMINISTRATIVE DECISION.]
1. The department's Motion for Summary Judgment filed with the Commission on June 22, l998, is granted.
2. Notice of Violation under administrative cause number 97-189W is issued against Glenn Fortune and Dorothy A. Fortune pursuant to IC 14-10-2-6 for violations of IC 14-28-1.
3. Pursuant to the Notice of Violation Glenn Fortune and Dorothy A. Fortune are ordered to pay a penalty of $1,000.
4. The Fortunes are ordered to remove the illegally placed fill within 90 days from the issuance of a final order by the Commission, or in the alternative, negotiate an agreement with department which would provide for permit of the fill in question.
5. The Fortunes are ordered to remove the illegally placed residence within 90 days from the issuance of a final order by the Commission. 6. If the requirements of #4 and/or #5 above are not met, a charge will be assessed against the Fortunes pursuant to IC 14-10-2-6. The charge will be $500 per day beginning 91 days after the Commission issues a final order in this proceeding. The total charge assessed under this order will be a maximum of $30,000.
FINDINGS OF FACT
1. On September 3, l997, the department of natural resources (The "department") filed with the division of hearings of the Natural Resources Commission (The "Commission"), a Complaint for the Issuance of a Notice of Violation (NOV) and the Imposition of Penalties (the "Complaint") against Glenn Fortune.
2. The Complaint alleged that Fortune had placed fill and constructed a residence in the floodway of the Ohio River near Rockport, Luce Township, Spencer County without a permit from the department. These are the material facts of this case.
3. Tim Rider was assigned as Administrative Law Judge (ALJ) by the Commission for this proceeding.
4. On August 19, l998, the DNR filed a Motion to Join a Person needed for Just Adjudication, that person being Dorothy A. Fortune. The ALJ granted that Motion subject to objection by Dorothy A. Fortune. No objection was filed.
5. Indiana Code (IC) 4-21.5 (the Administrative Orders and Procedures Act) as well as 312 Indiana Administrative Code (IAC) 3 govern the conduct of this proceeding.
6. The department is an agency as defined in IC 4-21.5-1-3 and is the agency responsible for regulating floodways in Indiana under IC 14-28-1 (The Flood Control Act).
7. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
8. In accordance with IC 14-10-2-3, the Commission is the ultimate authority for the department for this type proceeding and is authorized by IC 14-10-2-6 to issue an NOV to a person who violates a law administered by the department for which a misdemeanor or infraction penalty is established.
9. If that person, having received the NOV, fails to abate the violation within a period of not less than 15 days as specified in the NOV, the Commission may impose a charge that does not exceed the maximum amount that may be assessed by a court for committing the violation.
10. In the Complaint the department alleges that the Respondents have violated IC 14-28-1-20 and IC 14-28-1-22 (c) and (e).
11. IC 14-28-1-32 provides that a person who violates section 20(2) of the Flood Control Act commits a Class B infraction, and each day of continuing violation after conviction of the offense constitutes a separate offense. For committing a Class B infraction, a court may assess a maximum amount of $1000 for each day the violation continues.
12. IC 14-28-1-33 provides that a person who violates section 20(1) or 22 of the Flood Control Act commits a Class C infraction, and each
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day of continuing violation constitutes a separate offense. For committing a Class C infraction, a court may assess a maximum amount of $500 for each day the violation continues.
13. Further, IC 14-28-1-36 provides that in addition to other penalties prescribed, the director may impose a civil penalty under IC 4-21.5 not to exceed $1000 on a person who violates section 20 or 22 of the Flood Control Act and that each day a violation continues after a civil penalty is imposed constitutes a separate violation.
14. In the Complaint the department directs that the maximum civil penalty be imposed by the Commission.
15. On October 6, l997, Fortune filed an Answer to the Complaint. In the Answer he admitted to conduct alleged but denied that the conduct was a violation of the Flood Control Act.
16. At a prehearing conference held in Evansville, Indiana on November 17, l997, Glenn Fortune told the ALJ that the allegations made by the department in the Complaint were true but that he had been mislead by Spencer County officials who told him (Fortune) he was free to build a dwelling in the area in question.
17. Subsequently, the ALJ offered respondents' counsel the opportunity to request joinder of any Spencer County official as a party but no such request was ever filed.
18. Counsel for the Fortunes has attempted to advance legal theories to justify his clients' conduct in this matter as lawful.
19. In addition, counsel for the Fortunes raised several timely affirmative defenses, including: Estoppel; Justification and Excuse; Waiver; and Custom and Usage.
20. In response to a request made by the ALJ during the last status conference conducted for this cause, counsel for the Fortunes submitted a concise list of Contentions.
21. On June 22, l998, the department filed a Motion for Summary Judgment.
22. On July 27, l998, the Fortunes filed a Brief in Opposition to the Motion for Summary Judgment together with one supplemental contention.
23. The department replied on August 5, l998.
24. The ALJ conducted an impromptu status conference/oral argument on October 26, l998, in an effort to induce the parties to again attempt to settle their dispute. Apparently, no settlement has been reached so the ALJ now rules on this matter.
25. In their brief the Fortunes placed additional facts before the ALJ that they alleged are both in dispute and material. These facts pertain to when the reconstruction of the Fortunes' dwelling took place and whether or not the replaced dwelling met the definition of a "mobile home".
26. The department's filings show that neither of these facts to be material and in dispute:
a. The dates of construction of the residence were admitted to by Glenn Fortune during the discovery process. He stated that the construction began in 1996 and was completed in April 1997. The department accepts these statements as fact so even if these dates are material they are not in dispute.(See Conclusions of Law for further discussion).
b. The issue of whether or not the structure previously on the site was defined as a "mobile home" or a "recreational vehicle" is also not in dispute. While it does not concede the definitions offered by the Fortunes, the department will not dispute them because it contends that the definition is not material.(See Conclusions of Law for further discussion).
27. Accordingly, it is found that the material facts noted in finding 2 above are not in dispute; that the additional facts advanced bythe respondents and noted in finding 25 above, even if they are material, are not in dispute; and therefore, the below noted Conclusions of Law will be dispositive of this controversy.
SPENCER CIRCUIT COURT ORDER GRANTING STAY OF ENFORCEMENT OF FINAL ORDER OF THE NATURAL RESOURCES COMMISSION
"Come now the petitioners, Glenn Fortune and Dorthy A. Fortune, a/k/a Dorothy Fortune, and move the Court for an order staying enforcement of the Final Order of the Natural Resources Commission and the Court having considered said motion and being duly advised in the premises, it is ORDERED that the enforcement of the Final Order of the Natural Resouces Commission in this cause, entered on May 6, 1999, be and is hereby stayed until further order of the Court. All of which is ordered this 3rd day of August, 1999."