STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. C. WEITERSHAUSEN, SR., )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 76-944

   )

   JERRY E. COLE AND STATE OF )

   FLORIDA DEPARTMENT OF )

   ENVIRONMENTAL REGULATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to proper notice final hearing in this cause was held on August 10, 1976, in Brooksville, Florida. R. L. Caleen, Esquire appeared on behalf of the Department of Environmental Regulation, Mr. R. C. Weitershausen, Sr. appeared in his own behalf and Mr. Jerry E. Cole appeared in his own behalf.

   
   

   The purpose of the final hearing was to determine whether Jerry E. Cole should be granted a permit to construct a hydrilla barrier and catch basin at the end of a canal.

   
   

   Having considered all testimony and evidence the Hearing Officer enters the following:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent Cole seeks to construct a weed barrier approximately 40 feet from the end of a dead-end canal. Petitioner Weitershausen's property begins approximately 48 feet from the end of the canal.

      
      

   2. The only two property owners whose access to the canal will be restricted by the weed barrier are Respondent Cole and Mr. Wheeler, both of whom consent to the placing of the barrier.

      
      

   3. Throughout most of the year weeds are not a problem in the canal. However, under certain conditions hydrilla is blown into the canal and backs up at the end adjacent to Mr. Cole's property. Without a weed barrier these weeds are blown to the end of the canal and remain there where they settle to the bottom, break down, and because of the decomposition smell and are otherwise objectionable. The weed barrier as proposed will keep the hydrilla floating longer and reduce this settling and decomposition.

      
      

   4. The weed barrier does not create a safety hazard. The weed barrier will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest nor will it result in the destruction of oyster beds, clam beds, or marine productivity to such am extent as to be contrary to the public interest. The weed barrier will not create a navigational hazard, or a serious impediment to

      navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

      
      

   5. The 8 feet of distance between the weed barrier and Mr. Weitershausen's property provides a catch basin for the buildup of weeds short of Mr. Weitershausen's property. So long as the weeds are properly cleaned out this catch basin is sufficient to prevent weeds from building up along Mr. Weitershausen's property.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of this cause.

      
      

   7. The subject permit meets the criteria for issuance set out in Chapter 253, Florida Statutes, and Subsections 17-4.29(1) and (6), Florida Administrative Code.

RECOMMENDATION

It is, therefore, RECOMMENDED that the permit as applied for be issued with the condition that the applicant be required to remove the weeds from in front of the weed barrier at least once a month and at any time the weeds should back up to the extent that they substantially encroach on Mr. Weitershausen's waterfront.

ENTERED this 17th day of September, 1976 in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

R. L. Caleen, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Mr. Jerry E. Cole Route 6, Box 871Y

Brooksville, Florida 33512

Mr. R. C. Weitershausen Route 6, Box 871X Brooksville, Florida 33512

Docket for Case No: 76-000944

Orders for Case No: 76-000944