STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. T. OSBORNE, et al., )

   )

   Petitioner, )

   )

   vs. ) DOAH CASE NO. 78-753

   ) FANO HOLDING CORPORATION and ) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to Notice, the Division of Administrative Hearings, by its duly designated hearing officer, James E. Bradwell, held a public hearing in this case on August 25, 1978, in Cocoa, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: Edward M. Jackson, Esquire

   Post Office Box 127 Cocoa, Florida 32922

   
   

   For Respondent, Diane S. Guthrie, Esquire Fano Holding Spielvogel & Goldman, P.A. Corp.: Post Office Box 1366

   Merritt Island, Florida 32952

   
   

   For Respondent, Segundo Fernandez, Esquire Department of Assistant General Counsel

   Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

   Twin Towers Office Building Tallahassee, Florida 32301

   
   

   1. On or about March 30, 1978, Respondent, State of Florida, Department of Environmental Regulation, herein sometimes referred to as the Department, gave notice of its intent to issue a permit to Fano Holding Corporation (sometimes herein referred to as Fano) for the construction of the following:

      
      

      EXHIBIT A

      
      

      "A 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide 'T' at the waterward end. Mooring pilings to accommodate 22 slips are also proposed. A breakwater is to be built along the waterward edge of the said 'T' and a 55 foot long by 14 wide deck at the landward end of the pier adjacent to an existing struc- ture at the shore line. No excavation or filling is

      proposed. In Section 33, township 24 South, Range 36 East, Indian River, Brevard County."

      
      

   2. On or about February 27, 1978, the Department of the Army Corp of Engineers issued a permit to Fano to construct the above-described facility. By letter dated March 27, 1978, the Department of Natural Resources advised the Department of Environmental Regulation and the Petitioner, Fano, that a lease was not required since the use of the proposed docking facility was for the condominium owners only and no direct income would be derived from usage of this facility. (DER Exhibit #3). A petition for formal administrative proceeding on the application of Fano was filed on behalf of the following petitioners: (a) Mrs. Eva Abromet (b) Mr. and Mrs. H. J. Bigam (c) Mr. T. D. Carmichael (d) Mrs. Christy M. Davies (e) Mrs. L. R. Davis (f) Mrs. Lillie Elmore (g) Mr. and Mrs. John Myers (h) Dr. R. T. Osborne (i) Mrs. F. C. Perri (j) Mr. and Mrs. A. E. Smith (k) Mr. and Mrs. James L. Smith (l) Mrs. Eva C. Wooten.

      
      

   3. During the administrative hearing, Affidavits of Withdrawal As Purported Petitioners and In Support of Granting Application for Dock Permit which was previously executed by Mr. and Mrs. Albert E. Smith and John I. and Louise C. Myers were submitted to the Hearing Officer and the attorneys for the Petitioners withdrew the names of the Smiths and the Myers as well as Mr. and Mrs. H. J. Bigam as Petitioners in the proceeding.

      
      

   4. The application to construct the proposed facilities was made on behalf of those persons who own a vested present interest and fee title to the condominium units situated at 115 River Drive, a condominium unit existing pursuant to the Florida Condominium Act. Said unit owners have acquired in the purchase of their condominium unit, all riparian rights in and to the Indian River apartment to the property conveyed. The waters of the Indian River in the area of the proposed construction have been classified according to their use as Class III waters for the purpose of recreation, propagation and management of fish and wildlife.

      
      

   5. The subject area is the Indian River west shore and is approximately one mile north of State Road 520. As stated, this area is Class III waters and is sparsely to moderately vegetated by sea grass and marine algae beds. Water clarity is usually cloudy. There are at least two commercial marinas nearby. The project shore is bulkheaded and has limited patches of shoreline vegetation. The uplands consist of a narrow right-of-way bordering Indian River Drive North. Road runoff is discharged into the river. The near-shore bottoms consist of sand and scattered rubble with algae attached to the rubble. The off shore bottoms slope to a depth of approximately seven feet. There is no submerged vegetation observable in the deeper areas greater than four feet. The shallower bottoms are vegetated by moderate patches of marine algae. Benthic and dip samples were taken in both the shallow and deeper areas. The shallower bottoms consist of sandy shell with some rubble. Samples in the shallow area include moderate amounts of tubiculous polychaetes, amphipos, isopods, mysids, surf clams, nassa mud snails and pagurd crabs. Deeper bottoms consisted of soft, fine, gray silty sand and mud with some shell. Samples in this area included very sparse amounts of brittle stars and silted surf clam. Following an evaluation of all the various reports and samples submitted to the Department, the conclusion was reached that the proposed project would not have a significant and adverse effect on marine biological resources or water quality. This conclusion rested primarily on the fact that the marina would be located primarily over depauperate bottoms with adequate water depths for navigation and an area designated for Class III recreation.

   6. Based thereon, the Department granted its approval and issued its Notice of Intent to grant the permit for the project with the following modifications and suggestions to reduce or minimize adverse impacts:

      
      

      1. No liveaboards

      2. No discharge of any substances in the river

      3. No fueling facilities

      4. A breakwater is to be sifted (not a solid Structure) in order to allow water movement.

      5. The dock along the shore should be relocated over deeper water to prevent shading of the productive near-shore area.

         
         

   7. Although the Department issued its Notice of Intent to Grant Approval for the subject project, Mr. R. S. Murali, an hydrologist employed by the Department, expressed some concern about the subject project inasmuch as he felt that the breakwater would act as a protective structure which would bring about changes in wave pattern which would lead to erosion and/or scouring both at the toe of the breakwater and along the NW and SE edges of the breakwater. He concluded that the erosion associated with changes in the wave pattern will induce shoaling in adjacent areas which would impede navigation. Finally, he concluded that the anticipated changes in circulation will result in stagnant water condition, and based thereon, he found it difficult to recommend project approval under Chapter 253, F.S. (Petitioner's Exhibit #3).

      
      

   8. The undersigned considered this concern expressed by Mr. Murali and noted that the breakwater as approved by the Department's Notice of Intent to Grant the permit included a provision that it be slated to induce a forcing function. Further, the Department considered Mr. Murali's concerns and concluded that the proposed structure would not impede the flow of the river.

      
      

   9. Mr. J. L. Smith, a resident of the area who has lived within 1,000 feet of the proposed project since 1941 testified as to his familiarity with the area and of the shore line. He testified that prior to construction of the Hubert H. Humphrey Bridge, there was very little odor, algae and seaweed blown into the area. He testified that when the bridge was constructed and the area was dredged and filled, the conditions worsened and have continued through this date. He testified that there is very little air flow in the area, the area being "calm", by the placement of various boats, which will worsen when the proposed marina, which will accommodate approximately 22 vessels, is completed. He testified that the wind generally blow in an easterly direction and algae and seaweed is transmitted to the shoreline emitting foul odors.

      
      

   10. Reece H. Kessler, an environmental specialist employed by the Department in the Dredge and Fill Section, is responsible for permits in the Brevard and Indian River Counties. He received a B.S. degree from Mercer in 1969, in Biology, and has completed approximately 30 hours of further studies at the University of South Florida. Since 1973, Kessler has been involved with the assessments and impact of dredge and fill projects in this area. During his employment, he has examined between 750 to 1,000 projects, of which approximately 250 were dock projects. He testified that when he received the subject permit application, he studied the adjoining areas for specie diversification, water quality and the possible impact that the proposed project would have on the area. He testified that the subject project would entail no dredge and fill activities. He testified that tide breakwater would not extend to the river bottom which would create and/or induce a churning action to reduce water stagnation. He also testified that the breakwater would be slatted to

       permit water flow through the breakwater. Kessler made several visits to the area. He viewed the site from the shoreline and later launched a boat to take water samplings from the water column acid bottoms' to determine water quality and ecological impact. He noted some rubble in the shallow areas and has some concern about trash and debris in the area. To reduce a worsening of this condition, he inserted a clause proscribing any dumping of debris from boats in the area. Kessler made subsequent visits during the fall and summer months when his initial findings were verified and remained unchanged.

       
       

   11. Comments were invited from DNR and a letter was received from DER granting clearance for the proposed project. (DER exhibit #3)

       
       

   12. Raymond Grissel, a biologist employed by the County for approximately six years testified that the County had taken samples of the area some years past and found that the bacteria and coliform levels were within the standards of Class III waters.

       
       

   13. The Petitioners failed to introduce any evidence tending to show that issuance of the subject permit would result in the violation of any specific water quality standard. Based thereon, and in the absence of any evidence introduced by the Petitioner which would provide a basis for showing that the proposed facility would adversely affect water quality or existing aquatic resources, within the areas protected or regulated by the statutes setting forth the authority of the Department, the Department's decision to issue a construction permit should stand.

       
       

       CONCLUSIONS OF LAW

       
       

   14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), F.S.

       
       

   15. The authority of the Respondent, Department of Environmental Regulation is derived from Chapters 253 and 403, Florida Statutes, and Florida Administrative Code, Setion 17-4.

       
       

   16. Competent and substantial evidence was offered to sustain the intended action of the Respondent, Department of Environmental Regulation, Notice of Intent to Issue a Permit (certification), Chapters 253 and 403, Florida Statutes, and Public Law 92-500.

       
       

   17. Insufficient evidence was offered to establish that the Petitioners made any showing that the proposed construction would have the effect of violating water quality standards or would degrade the aquatic resources by the construction of the proposed facility.

RECOMMENDATION

Based on the forgoing Findings and Conclusions of Law it is hereby Recommended that the Respondent, DER, issue a permit to Respondent, Fano Holding Corporation, to construct a 200 foot long by 5 foot wide pier with a 100 foot long by 5 foot wide "T" at the waterward end, as set forth hereinabove.

RECOMMENDED this 10th day of October, 1978, in Tallahassee Florida.

JAMES E. BRADWELL,

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Segundo Fernandez, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Diane S. Guthrie, Esquire Spielvogel & Goldman, P.A.

P.O. Box 1366

Merritt Island, Florida 3252

Edward M. Jackson, Esquire

P.O. Box 127

Cocoa, Florida 32922

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

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

1. T. OSBORNE, et al., Petitioner,

   vs. DOAH Case NO.: 78-753

   DER FILE NO.: 05-30-0543-4E

   FANO HOLDING CORPORATION and (6826) STATE OF FLORIDA DEPARTMENT OF

   ENVIRONMENTAL REGULATION,

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   On October 6, 1978, the duly appointed hearing officer in the above-styled matter submitted to the Department and all parties a Recommended Order, a copy of which is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-2.68(1), Florida Administrative Code, and Section 120.57(1)(a)(8), Florida Statutes, the parties were given an opportunity to submit written exceptions to the Recommended Order. Petitioners filed a set of exceptions, a copy of which is attached hereto as Exhibit "B". Respondents did not file any exceptions. None of the parties requested oral argument on the exceptions filed by Petitioners.

   
   

   EXCEPTIONS

   
   

   Petitioners' Exceptions To Hearing Officer's Recommended Order have been considered, and may be disposed of in brief fashion.

   
   

   Exception 1: Petitioners make no allegation in this exception that the findings entered by the hearing officer were not based on competent and substantial evidence. A review of the testimony at the hearing reveals that the shoreline configuration and surface water discharge points were discussed by witnesses Smith, Kessler, and Grizzle. Petitioners, however, presented no expert testimony, nor even competent and substantial evidence, that the shoreline configuration and runoff discharge points created conditions that would result in the proposed project causing violations of Department water quality standards or adversely affecting the marine environment.

   
   

   Witness Reese Kessler, an environmental specialist with the Department, with experience in reviewing approximately 750 - 1,000 dredge and fill permit applications, including 25-50 marina construction applications, testified that he recommended permit approval, having evaluated the application from a biological and ecological point of view, and visited the site at least twice. Addressing the question of flushing and the impact of runoff discharge, Mr.

   Kessler testified that there was no conclusive evidence as to whether flushing or non-flushing in a particular corner of a water body has an "improved effect" on water quality. He testified that runoff would collect and accumulate in the water body and create a cumulative effect on water quality regardless of the amount of flushing in a particular corner. Petitioners presented no testimony to rebut Mr. Kessler's assertions.

   
   

   Exception 2: The hearing officer was incorrect in determining that the subject area was approximately one (1) mile north of State Road 520. It affirmatively appears that witness Kessler testified that the subject area was approximately 800 feet north of State Road 520, and that the one-mile figure found in the Permit Application Appraisal introduced into evidence should be so corrected.

   
   

   Exception 3: A review of the testimony at the hearing reveals that the Department's permitting staff reviewed the application, including the proposed condition that the breakwater be slatted and not reach the river bottom, and concluded that the flow of water would not be impeded and that stagnation would not occur. A hydrographic survey is not mandated by the Department's rules and was not deemed necessary in the instant case.

   
   

   Petitioners' Exhibit No. 3, the Murali memorandum, constitutes uncorroborated and unsubstantiated hearsay evidence and is insufficient to

   support a finding of fact, as provided for in Section 28-5.25(6)(c), Florida Administrative Code. Furthermore, it appears from the record, in particular from Mr. Kessler's testimony, that the opinion expressed in Mr. Murali's memorandum was based on the incorrect assumption that the proposed breakwater would reach down to the river bottom and not terminate in mid-water column.

   Accordingly, Petitioners' exceptions based on the Murali memorandum are not based on competent and substantial evidence. It should be noted that Petitioners produced no expert or competent and substantial hydrographic testimony or evidence of their own to demonstrate the need for a hydrographic survey.

   
   

   Exception 4: As stated in the comments on Exception 3, and testified to by Mr. Kessler, the Murali opinion was based on an incorrect assumption of the design of the proposed breakwater, and this exception can likewise be dismissed.

   
   

   Exception 5: In this exception, Petitioners allege that the hearing officer erred in failing to set forth in his conclusions of law that Respondent, Fano Holding Corporation, has the burden of proof of showing no adverse effects. The instant case constitutes a proceeding in which the Petitioners allege that the Department's intent to issue a permit to Fano Holding Corporation is based on insufficient and incorrect staff information, and that construction of the proposed project will result in the various adverse effects claimed by Petitioners in their Petition For Formal Administrative Proceeding and the various pleadings they have submitted since that time. Respondents deny these allegations. It is well settled that the burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, which in this case means that Petitioners have the burden of proof. Balino v.

   Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3d DCA 1976); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974); State Department of Agriculture and Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972).

   Petitioners have not met their burden of proof in showing that the alleged adverse effects will occur or that the Department's assessment of the, permit application was based on this sufficient and incorrect information. The hearing officer found as much in Conclusion of Law No. 4 in the Recommended Order where he stated that "insufficient evidence was offered to establish that the Petitioners made any showing that the proposed construction would have the effect of violating the water quality standards or would degrade the aquatic resources by the construction of the proposed facility."

   
   

   Furthermore, even if Respondents in this case had had the burden of proof, the hearing officer, having heard all the testimony at the hearing, and having evaluated all the exhibits introduced into evidence, still found in Conclusion of Law No. 3 in the Recommended Order that "competent and substantial evidence was offered to sustain the intended action of the Respondent, Department of Environmental Regulation, notice of intent to issue a permit (certification), Chapter 253 and 403, Florida Statutes, and Public Law 92-500." Even if the burden had been on Respondents, the burden would have been met.

   
   

   Exception 6: The allegations contained in this exception have been substantially addressed in the above paragraphs dealing with Exceptions 1 through 5. Suffice it to say that the allegations of Exception 6, even if sustained by the record, would not sustain a rejection or modification of the findings of fact made by the hearing officer. Based on those findings, the hearing officer's conclusion of law that insufficient evidence was offered to establish the subject detriments was unavoidable.

   Exception 7: It affirmatively appears from the record that Petitioners' allegation that the closest water samples taken by Brevard County Biologist Ray Grizzle were not in the immediate area of the proposed project site, is correct. Such a finding, however, would be immaterial to the decision reached by the hearing officer, and does not mandate a change in his conclusions.

   
   

   CONCLUSIONS OF LAW

   Section 120.57(1)(b)(9), Florida Statutes, provides that "The agency in its Final Order . . . may

   not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon com- petent substantial evidence, or that the proceedings in which the findings were based did not comply with the essential requirements of law."

   
   

   In the instant case, Petitioners have submitted exceptions to the Recommended Order, and yet failed to direct this agency to the pertinent portions of the record which would support their exceptions. While a court reporter recorded the proceedings at the hearing, Petitioners have not submitted a transcript or portions of the transcript to substantiate their allegations.

   The Department provided mechanical transcription pursuant to Section 28-5.25(7), Florida Administrative Code, and reviewed those tapes to afford Petitioners due consideration of their exceptions. Even after this review, it does not appear that the hearing officer's findings of fact "were not based upon competent substantial evidence or that the proceedings in which the findings were based did not comply with essential requirements of law." Accordingly, this agency is forbidden by law from rejecting or modifying the hearing officer's findings of fact. The conclusions of law found in the hearing officer's Recommended Order inevitably flow from those findings, and do not constitute an erroneous application of Florida law. Accordingly, they may not be disturbed.

   
   

   The hearing officer's Recommended Order did not contain rulings upon proposed findings of fact and conclusions of law submitted by the parties, in accordance with Section 120.59(2), Florida Statutes. This omission is corrected with the inclusion of an Appendix to this Final Order containing rulings in accordance with Section 120.59(2), Florida Statutes.

   
   

   The following scrivener's errors in the Recommended Order are hereby corrected: "Reece H. Kessler", on Page 5, ought to read, "Reese H. Kessler". "Raymond Grissel", on Page 5, ought to read, "Raymond Grizzle".

   
   

   Having carefully considered the Recommended Order, including Findings of Fact and Conclusions of Law, and the Recommendation, the Exhibits and pleadings submitted, including exceptions, and having reviewed the mechanical transcription of the proceedings at the hearing, it is therefore,

   
   

   ORDERED by the State of Florida Department of Environmental Regulation as follows:

   
   

   1. The Findings of Fact are adopted, as modified in this Order.

   2. The Conclusions of Law are adopted in toto, along with the applicable law as discussed in this Order.

      
      

   3. The Recommendation of the hearing officer is adopted.

To the extent that any finding of fact or conclusion of law entered by the hearing officer conflicts with the statements of fact and interpretations of law contained in this Order, such findings and conclusions are modified.

The district office shall issue Fano Holding Corporation a permit for the proposed project, including the permit provisions outlined by the hearing officer on Page 4 of the Recommended Order, within twenty (20) days from the date of this Order.

DONE AND ENTERED this 1st day of December, 1978, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Appendix

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

R. T. OSBORNE, et al., )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 78-753

)

FANO HOLDING CORPORATION and ) DER FILE NO: 05-30-0543-4E STATE OF FLORIDA DEPARTMENT OF ) (6826) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

APPENDIX TO FINAL ORDER; RULINGS IN ACCORDANCE WITH FLORIDA STATUTES SECTION 120.59(2)

The parties have submitted post-hearing memoranda including a proposed Recommended Order by Respondent, Fano Holding Corporation, and a Direct Summation submitted by Petitioners. Rulings upon the proposed findings of fact

set out in those two pleadings are set out herein in accordance with Section 120.59(2), Florida Statutes.

Proposed Findings of Fact submitted by Respondent, Fano Holding Corporation, have been substantially adopted in the Final Order, and are hereby specifically adopted.

Proposed Findings of Fact submitted by Petitioners in their "Facts Summary" of the Direct Summation have been dealt with as follows:

Paragraph No. 1: Substantially adopted insofar as it does not conflict with the findings in the Final Order.

Paragraph No. 2: Substantially adopted insofar as it does not conflict with the findings in the Final Order.

Paragraph No. 3: Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 4: Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 5(a): Substantially adopted insofar as it does not conflict with the findings in the Final Order.

Paragraph No. 5(b): Substantially rejected, as irrelevant and immaterial.

Paragraph No. 5(c): Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 5(d): Substantially adopted insofar as it does not conflict with the findings in the Final Order.

Paragraph No. 5(e): Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 5(f): Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 6: Substantially rejected, as not supported by competent and substantial evidence.

Paragraph No. 7: Adopted insofar as the status of Petitioners, and rejected as to the effects of the proposed project, as not supported by competent and substantial evidence.

The rest of Petitioners' Direct Summation as well as Petitioners' Reply Summation are hereby rejected insofar as they conflict with the findings in this Final Order. The proposed Conclusions of Law submitted by Respondent, Fano Holding Corporation, are substantially adopted insofar as they do not conflict with the Conclusions of Law in the Final Order, except for proposed Conclusions of Law No. 1 and No. 2 which are rejected.

Docket for Case No: 78-000753

Orders for Case No: 78-000753