STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

In the matter of: JOHN E. LAYTON ) AND HARVEY L. STEVENS, d/b/a OAK )

PARK Mobil Home Village, a )

partnership, P. O. Box 428, Alva, ) CASE NO. 75-1070 Lee County, Florida 33920 )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on August 25, 1975, at Ft. Myers, Florida.

The following appearances were entered: Harold N. Hume, Jr., Allen, Knudsen, Swartz, DeBoest, Rhoads, and Edwards, Ft. Myers, Florida, for the Petitioners; and Ross McVoy, Department of Environmental Regulation, Tallahassee, Florida, for Respondent.

John E. Layton and Harvey L. Stevens, d/b/a Oak Park Mobil Home Village, a partnership ("Petitioner" hereafter), have been seeking issuance of a permit from the Department of Environmental Regulation ("Respondent" hereafter), and its predecessor, the Department of Pollution Control, to open a channel to a boat basin that has been constructed. The permit is being sought in accordance with Florida Statute 403.087. The Respondent denied the request for a permit, and Petitioners are seeking review of that decision. The final hearing was scheduled by notice dated July 21, 1975.

Petitioners called the following witnesses: M. J. Harper, Director of Environmental Protection Services, Lee County, Florida; Robert H. French, Director of Public Works, City of Ft. Myers, Florida; Richard W. Cantrell, an aquatic biologist with the Department of Environmental Regulation; John Layton, one of the petitioners and owners of the Oak Park Mobil Home Village; and William Dexter Bender, the Director of Environmental Quality for Duane Hall Associates, Consulting Engineers. Petitioners offered eight separate exhibits all of which were received into evidence. Respondent called no witnesses, and offered one composite exhibit, which was received into evidence. The parties were permitted an

opportunity to file Legal Memoranda and Proposed Findings of Fact and Conclusions of Law. Each party has submitted a memorandum of law.

FINDINGS OF FACT

1. Petitioners are seeking a permit to cut a channel from a boat basin to the Caloosahatchee River. The basin, which has been constructed, is located approximately forty to sixty feet inland from the Caloosahatchee River. Petitioners are also seeking a permit to operate the proposed basin. The basin would serve as a recreational facility for a trailer park. The proposed basin has dimensions of approximately 140 feet by 148 feet. It is surrounded by a concrete seawall. The basin would provide facilities for approximately 20 boats no larger than twenty-two feet in length. The trailer park is located across the street from the river and basin. The street is approximately 600 feet from the river. Sewage treatment and water treatment plants for the trailer park are located in the corners of the park farthest from the river. The basin is surrounded by vegetation. All water going into the basin would be filtered through grass. The project is located approximately one mile east of the City of Alva, fourteen miles from the City of Tice, and seventeen miles from the City of Ft. Myers. The basin is eight and one-half miles up river from Lee County's pumping stations, which are used to pump water from the river to wells which augment the county's water supply. The Caloosahatchee River was channelized approximately twenty years ago. It no longer follows a natural course. The river is a part of the Cross Florida system connecting with Lake Okeechobee.

   
   

2. The proposed boat basin would not enhance the waters of the Caloosahatchee River. The project could reasonably be expected to be a source of water pollution unless rules and regulations, which Petitioners have adopted, are scrupulously followed. These rules and regulations are set out in Figure 3 attached to Petitioner's Exhibit 7. If the rules and regulations are followed, the basin would not be a source of pollutants. There is no evidence in the record to the contrary. If the rules and regulations are not followed then there is a likelihood that the basin will be a source of pollutants, and that the pollutants would be discharged into the Caloosahatchee River.

   
   

3. Petitioners do not object to having the proposed rules and regulations made a part and a condition of any permits issued by Respondent.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties.

   
   

5. Petitioners have affirmatively demonstrated that the proposed basin will not cause pollution in contravention of Department of Environmental Regulation standards, rules, or regulations, or of the laws of the State of Florida, so long as rules and regulations which Petitioners propose to enforce are enforced.

   
   

6. A permit should be issued permitting Petitioners to open a channel between the basin and the Caloosahatchee River, and permitting Petitioners to operate the basin as provided in Florida Statutes 403.087; and, said permit should be conditioned upon petitioner's enforcement of the rules and regulations.

   
   

   RECOMMENDED ORDER

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

   
   

   RECOMMENDED as follows:

   
   

   That a permit be issued allowing Petitioners to complete construction of, and to operate, a basin as proposed in their amended petition, said permit being conditioned upon Petitioner's enforcing the rules and regulations set out in Figure 3 attached to Petitioners Exhibit 7.

   
   

   ENTERED this 29 day of October, 1975, in Tallahassee, Florida.

   
   

   
   

   G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

   (904) 488-9675

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   In the Matter of:

   JOHN E. LAYTON and HARVEY L. STEVENS, d/b/a OAK PARK MOBIL

   HOME VILLAGE, a partnership, DOAH CASE NO. 75-1070

   Post Office Box 428, Alva, Lee County, Florida 33920

   /

   
   

   FINAL ORDER

   
   

   BY THE DEPARTMENT:

   
   

   On October 29, 1975, the duly appointed Hearing Officer in the above styled cause entered his Recommended Order, consisting of Findings of Fact, Conclusions of Law, and Recommended Order, which recommended that the applied for permit be issued.

   
   

   On January 23, 1976, the Recommended Order, a copy of which is attached as Exhibit I, came before the Secretary for entry of final Department action. After consideration of the Recommended Order, and staff recommendations, the Secretary adopted the Recommended Order, subject to the following modifications:

   
   

   1. Only boats belonging to Oak Park residents shall be allowed in the marina;

      
      

   2. Live-aboards and boats longer than 22 feet shall be prohibited;

      
      

   3. No petroleum products or potentially harmful substances shall be sold at the marina;

      
      

   4. No boat maintenance shall be performed at the marina;

      
      

   5. A drainage pipe carrying upland runoff directly into the basin shall be removed;

      
      

   6. The area around the basin shall be reverse-sloped so that there is no direct runoff into the basin;

      
      

   7. Drainage plans for the upland development shall be submitted for review and approval by the Department of Environmental Regulation.

On January 23, 1976, a permit was issued in accordance with the Secretary's action.

In view of the fact that, through inadvertence, no written final order was rendered, this Final Order is entered for the purpose of reflecting the final agency action in this case.

DONE AND ENTERED this 7th day of September, 1977.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA TSCHINKEL

Assistant Secretary for

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been furnished to John E. Layton and Harvey L. Stevens d/b/a Oak Park Mobil Home Village at Post Office Box 428, Alva, Florida, by

U.S. Mail this 8th day of September, 1977.

R. L. CALEEN JR. General Counsel

Docket for Case No: 75-001070

Orders for Case No: 75-001070