STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAHILL PINES AND PALMS )

PROPERTY OWNERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1484

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 6, 1981, in Key West, Florida.

The Petitioners were represented by Gudrun Maria Nickel, Esquire, Big Pine Key, Florida; and H. Ray Allen, Esquire, Tallahassee, Florida, appeared on behalf of the Respondent, State of Florida, Department of Environmental Regulation.

Petitioners requested an administrative hearing on the Department's intent to deny their application for a permit to remove two plugs in an existing canal system, alleging the Department's determination on that application to be both erroneous and untimely. Accordingly, the issue for determination is whether Petitioners' application should be granted or denied.

Petitioners presented the testimony of Joan Dell, James A. Smith, John H. Etmanczik, John Meyer, and Pam Sperling. Additionally, Petitioners moved into evidence a 1955 plat of Cahill Pines and Palms.

At the conclusion of the Petitioners' evidence, Respondent moved for dismissal of the petition and denial of the application in question for failure of the Petitioners to meet their burden of proof by failing to affirmatively provide reasonable assurances that the short- and long-term effects of the project will not cause pollution in contravention of water quality criteria and standards, that the project is in the public interest, or that the project will not adversely affect the natural resources of the area, as required by Chapters

253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The undersigned granted that motion and adjourned the hearing without requiring any evidence on the part of the Respondent for the following reasons.

Prior to the hearing in this cause, the parties hereto filed a Joint Agreement and Stipulation pursuant to the prior Hearing Officer's Order dated December 17, 1980, requiring a prehearing stipulation. According to that stipulation, the only fact admitted and, therefore, requiring no proof at the hearing is that the project is to take place in a canal system that Petitioners desire to connect to waters of the state. By the conclusion of the Petitioners'

case, the only other additional facts placed into evidence are that the canals are currently in a closed or "plugged" condition and that some type of marine life has been observed to both prosper and die in the subject canal system.

Petitioners presented no testimony regarding the following: when an application was filed with the Respondent Department and by whom, what type of application was filed, what kind of permit is involved, what Petitioners' proposed project entailed (other than "removing plugs") and how such a project would be performed, what the short-and long-term effects of the project would be on state water quality standards, or on the natural resources of the area, or why the project is in the public interest. Petitioners failed to introduce the application submitted to the Respondent Department, any relevant correspondence between the parties, the Department's intent to deny notice, or any other data regarding the project in question. In summary, not only did Petitioners fail to establish a prima facie case at the conclusion of their evidence, but also the record is devoid of any evidence upon which any findings of fact can be made.

Additionally, Petitioners failed to present any testimony regarding the dates on which they filed their application and on which the Respondent Department acted or failed to act in order that the undersigned could determine any violation by the Respondent Department of the time requirements found in Section 120.60, Florida Statutes (1979).

Since the petitioners failed to present any affirmative evidence to demonstrate prima facie entitlement to whatever kind of permit they were seeking, the burden of going forward with its evidence never shifted to Respondent. Accordingly, to have required Respondent to present any evidence under the circumstances of this case would have been clearly erroneous as a matter of law.

RECOMMENDATION

Based upon the foregoing, it is, therefore, RECOMMENDED THAT:

A final order be entered dismissing the petition filed herein and denying Petitioners' application.

RECOMMENDED this 20th day of February, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February,1981.

COPIES FURNISHED:

Gudrun Maria Nickel, Esquire Bougainvillea Building

Route 1, Box 527-A

Big Pine Key, Florida 33043

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

H. Ray Allen, Esquire Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-001484

Orders for Case No: 80-001484