STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUAYSIDE ASSOCIATES, LTD., )

a Florida Limited Partnership, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1858

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

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came on for reconsideration on the undersigned Hearing Officer's own motion on the Motion for Partial Judgement on the Pleadings filed on behalf of the Department of Environmental Regulation (DER), and on the Motion for Summary Judgment and Alternative Motion for an Interlocutory Order of Judgment on the Pleadings filed on behalf of Petitioner, Quayside Associates, Ltd. (hereinafter "Petitioner" or "Applicant").

By order dated January 2, 1981, the Hearing Officer denied both of the aforementioned motions due to a misconstruction of the stipulated facts by the Hearing Officer. A proper construction of the stipulated facts compels a result contrary to that reached in the January 2, 1981 order. This result is finally dispositive of the issues in this proceeding, and is, therefore, the proper subject of a recommended order. Rule 28-5.205, Florida Administrative Code.

The aforementioned motions raise several issues for consideration by the Hearing Officer, but, by agreement of counsel at the hearing on these motions, this order will address only the issue of whether Petitioner is entitled to the issuance of a permit by default. Counsel for both Petitioner and DER filed a Stipulated Statement of Facts for Interlocutory Ruling containing facts sufficient for disposition of these motions by the Hearing Officer. These stipulated facts are contained in the Findings of Fact hereinafter set forth.

In addition, attached to the stipulation is a series of documents marked as Exhibits 1 through 9, which were also considered by Hearing Officer.

FINDINGS OF FACT

Counsel for the respective parties stipulated to the following facts:

1. Quayside Associates, Ltd., is a

   Florida limited partnership whose address is 10670 N.E. Quay Plaza, North Miami, Florida 33134.

2. Respondent is the Department of Environmental Regulation, an agency of the State of Florida as defined in Section 120.52(1), Florida Statutes.

3. This Petition relates to the Department's File No. DF13-28371-6E.

4. Petitioner was the applicant for the subject permit and will, as applicant, be directly affected by a denial thereof.

5. On February 28, 1980, Petitioner

   applied to the Department for approval of its Phase II Docking Facility which included an elevated walkway with wave break panels, nineteen (19) new wet slips and twenty-five (25) davits. (Exhibit "1")

6. On March 6, 1980, a completeness

   review form was sent to the applicant's representative by the Department. (Exhibit "2")

7. On March 6, 1980, the applicant's representative responded to the comments of the Department and completeness summary by letter from J. Frederic Blitstein to the Department's Subdistrict Office. (Exhibit "3")

8. As shown by the Department letter of May 29, 1980, response to the

   completeness summary were received by

   the Department from the applicant on March

   7 and 11, 1980, with final Department of Natural Resources clearance, as requested by the completeness summary, received by the Department of March 14, 1980 (see Exhibit 4). The response of the Depart- ment of Natural Resources is attached hereto as Exhibit "5".

9. On March 20, 1980, the representative of the Department made an on-site visit

   to the site as shown by the Departmental Summary Permit Processing Worksheet attached as Exhibit "6".

10. On April 9, 1980, the Department

    received the comments and recommendations of the Dade County Department of Environmental Resources Management which indicated that it had "no objection to the issuance of the Permit" subject to certain stipulations and conditions. (Exhibit "7")

11. On June 25, 1980, the Department held

    its scheduled Biscayne Bay Aquatic Preserve Hearing in Miami, Dade County, Florida.

12. On July 2, 1980, the Department issued a completion notice to the

    applicant indicating completion of the application on June 25, 1980. (Exhibit

    "8")

13. On September 9, 1980, the Department issued its Letter of Intent to Deny which gives rise to the subject proceeding. (Exhibit "9")

14. This Petition ensued and was filed

    with the Department on September 24, 1980.

15. The State of Florida, Division of Administrative Hearings has jurisdiction over this matter and has jurisdiction to make an Interlocutory Ruling regarding same.

16. This Stipulation may be utilized for interlocutory purposes or for all subsequent purposes.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

18. Section 120.60(2), Florida Statutes, provides that:

    
    

    When an application for a license is

    made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons.

    Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an

    error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period . . . Every application for license shall be approved or denied within

    90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law . . . Any application for a license not approved or denied within the 90-day or shorter time period, within 15 days after conclusion of a public hearing held on the application,

    or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved and, . . . the license shall be issued . . . . [A]ny . . . agency, if specifically exempted by law, shall be exempt from the time limitations within this subsection . . . .

    (Emphasis added).

19. Section 258.165, Florida Statutes, which governs activities, such as that proposed by Petitioner, to be conducted in the Biscayne Bay Aquatic Preserve, provides in part that:

    
    

    Any dredging or filling . . . or improvements . . . shall be approved only after public notice and hearings in the area affected, pursuant to chapter 120.

    
    

20. The issues as framed by the parties and presented for decision on these motions may be alternatively stated as:

    
    

    1. Whether, as contended by Petitioner, the 90 day period provided in Section 120.60(2), Florida Statutes, began to run on March 14, 1980, the date of the last affirmative act by the Applicant to furnish information to DER in support of its

       permit application; or

    2. Whether, as contended by DER, the

       90 day period began to run from the date of the "public hearing" required by Section 258.165, Florida Statutes.

       
       

21. The stipulated facts clearly establish, contrary to the conclusion drawn by the Hearing Officer in the order of January 2, 1981, that Petitioner's permit application was not approved or denied by DER within 90 days of the receipt of the last information requested of the applicant or within 15 days after conclusion of the public hearing required by Section 258.165, Florida Statutes.

    
    

22. DER's contention that the permit application is not "complete" so as to trigger the 90-day time period until the section 258.165, Florida Statutes, "public hearing" is actually conducted, is specifically rejected. As indicated in the January 2, 1981, order, it is the statutory responsibility of DER, not the permit applicant, to schedule and hold the required "public hearing". The potential for abuse inherent in allowing an agency to delay acting on an application by requiring completion of an agency function over which a permit applicant has no control was clearly the evil which the Legislature sought to prevent in enacting Section 120.60(2), Florida Statutes. It is therefore concluded as a matter of law that the permit completion date for purposes of triggering the time requirements of Section 120.60(2), Florida Statutes, is the date of performance of the last affirmative act required by the permit applicant by statute or valid agency rule or practice.

    
    

23. The stipulated facts establish that the last information furnished by DER by the Applicant was received by DER on March 14, 1980. DER clearly considered the application "complete" as of that date from the standpoint of information to be furnished by the Applicant since the only other relevant activity in the application file prior to issuance by DER of its "completion notice" on July 2, 1980, was the "public hearing" scheduled and conducted by DER on June 25, 1980. Agency action denying the permit application did not occur, however, until September 9, 1980, approximately 179 days after the last affirmative act by the Applicant to complete its application, and 73 days after the conclusion of the "public hearing."

24. The agency's processing of the application in this proceeding clearly violated the provisions of Section 120.60(2), Florida Statutes. DER has not been specifically exempted from the requirements of that section, and, as mandated by the unambiguous language of that statute, the requested permit should be deemed approved and should issue as a matter of law.

    
    

25. Accordingly, Petitioner's Motion for Summary Judgment or Judgment on the Pleadings is GRANTED and Respondent's Motion for Partial Judgment on the Pleadings is DENIED insofar as those motions relate to the entitlement of Petitioner of issuance of a permit by default.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That a final order be entered by the State of Florida, Department of Environmental Regulation granting the requested permit.

DONE and ENTERED this 8th day of January, 1981, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1981.

COPIES FURNISHED:

Clifford A. Schulman, Esquire Greenberg, Traurig, Hoffman,

Lipoff, Quentel & Wolff, P.A. 1401 Brickell Avenue (PH-1) Miami, Florida 33131

Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental

Regulation

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

Docket for Case No: 80-001858

Orders for Case No: 80-001858