STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN BABINEC, )

)

Petitioner, )

)

vs. ) CASE NO. 76-256

) Application No. 76-109

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 10, 1976, at the District Headquarters of the Southwest Florida Water Management District in Brooksville, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This hearing was held upon the complaint and notice by the Southwest Florida Water Management District to John Babinec of revocation of the permit Number 75-109.

This matter was noticed for hearing by the Southwest Florida Water Management District, and the Division of Administrative Hearings was requested to provide a Hearing Officer to hear the matter and present his Recommended Order to the Board.

APPEARANCES

For Petitioner: Jay T. Ahern, Esquire

Staff Attorney

Southwest Florida Water Management District Post Office Box 457

Brooksville, Florida 33512

For Respondent: John Babinec, pro se

901 Lakeshore Boulevard

Tavares, Florida 32778 FINDINGS OF FACT

1. Donald Richter and Oliver DeWitt, employees of the Southwest Florida Water Management District, were called and testified regarding the alleged violation by John Babinec of the permit Number 75-109 by John Babinec.

   
   

2. Permit Number 75-109 was approved by the Board on or about November 13, 1974, to allow John Babinec to fill a 20' X 40' area of Lake Eustis and bulkhead said fill.

3. On or about May 6, 1975, John Babinec advised the Board he had exceeded permit Number 75-109 by filling an area 30' X 32', and requested an exception to the existing permit. On May 20, 1975, Oliver DeWitt advised John Babinec that his permit had specific guidelines with which he should comply.

   
   

4. On June 4, 1975, Richters inspected the construction and found that additional fill had been placed in Lake Eustis. On June 8, 1974, in a letter to DeWitt, John Babinec again requested the Board to issue the necessary permit for him to finish his project. On June 19, 1975, DeWitt directed John Babinec to cease and desist from all filling in Lake Eustis not authorized under permit Number 75-109, or that revocation proceedings would be commenced against that permit.

   
   

5. By a letter dated September 10, 1975, John Babinec advised DeWitt that he would remove all excess fill within two months. On November 21, 1975, DeWitt wrote John Babinec, advising him that he should not install a bulkhead except as approved in permit Number 75-109. On December 4, 1975, a Cease and Desist Order was issued against John Babinec by Reichters. On December 8,1 975, Richters' inspection revealed that John Babinec had not acted to remove fill or cease construction.

   
   

6. On November 23, 1975, the Southwest Florida Water Management District commenced this proceeding to revoke permit Number 75-109.

   
   

7. Testimony clearly revealed that fill and a bulkhead had been improperly installed within the area marked "A" of said Complaint. Babinec testified the fill in Area B had been removed.

   
   

   CONCLUSIONS OF LAW

   
   

8. Rule 16J-1.11(1), F.A.C., clearly states that a permit may be revoked "if it (Board) determines that the permitted work or works . . . is in violation of . . . the conditions of the permit."

   
   

9. Clearly placing the bulkhead and fill ten (10) feet beyond the permitted bulkhead and fill line violates the permit.

RECOMMENDATION

The Hearing Officer having considered the law and the evidence recommends the permit be revoked.

DONE AND ORDERED this 23rd day of February, 1975.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Jay T. Ahern, Esquire Counsel for Permittee

John Babinec

901 Lakeshore Boulevard

Tavares, Florida 32778

Docket for Case No: 76-000256

Orders for Case No: 76-000256