STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN AND OLDRICH JERABEK, )

)

Petitioners, )

)

vs. ) CASE NO. 87-1657

)

CITY OF CAPE CORAL and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, tThe Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 17, 1987, at Ft. Myers, Florida.

APPEARANCES

For Petitioner: Oldrich Jerabeck, pro se

5728 Flamingo Drive

Cape Coral, Florida 33915

For Cape Coral: William M. Powell, Esquire

Post Office Box 150027

Cape Coral, Florida 33915-0027

For DER: Richard Grosso, Esquire

Department of Environmental Regulation Twin Towers Office Fuilding

2600 Blair Stone Road Tallahassee, Florida 32399-2400

By letter dated February 28, 1987, Ann and Oldrich Jerabeck, Petitioners, challenge the Department of Environmental Regulation (DER), Respondent's, Notice of Intent to Issue a modification to permit number 36-0710935 previously issued to the City of Cape Coral, Respondent, to provide berths at the Cape Coral Marina. Specifically, Petitioners challenge DER's intent to remove the restriction in the marina permit prohibiting any boat or motor maintenance being performed in the marina.

At the hearing Petitioner called five witnesses, Respondent called three witnesses and three exhibits were admitted into evidence. Proposed findings submitted by Respondent DER are accepted. No proposed findings were submitted by Petitioners.

BACKGROUND

Following an administrative hearing the Department of Environmental Regulation in 1924 issued a dredge and fill permit to the City of Cape Coral authorizing the construction of a thirty-nine (39) boat slip marina in the Godman Yacht Basin conditioned, in part, on a total prohibition of boat and motor maintenance in the basin. The sole issue in these proceedings involves the City's request that this total prohibition be removed and whether such removal would be contrary to the public interest.

FINDINGS OF FACT

1. The City owns and operates a marina at the Godman Yacht Basin which is contiguous to Flamingo Canal a Class III body of water comprising a man made dead-end canal. Petitioners live along the Flamingo Canal.

   
   

2. In 1924 DER issued a dredge and fill permit to the City of Cape Coral to allow the construction of 39 boat slips in the basin. That permit prohibited any boat and motor maintenance in the basin.

   
   

3. In assessing the City's request for modification of this prohibition DER representatives visited the yacht basin and reinspected the facility and the land area from which water drains into the basin.

   
   

4. Current regulations by the city prohibit the discharge of refuse or waste from boats in the basin. Nevertheless, as testified to by Petitioners' witnesses, refuse and waste is often discharged from boats and finds its way into Flamingo Canal. Petitioners' primary concern is that if boat maintenance is allowed, more boats will visit the basin and more fouling of the waters will occur.

   
   

5. The survey by DER personnel found that the City had no equipment at the basin to contain or clean up an oil spill if one accidentally occurred, and that storm water run-off from one parking lot near the basin discharged more pollutants in the basin than could be expected from limited boat and engine maintenance.

   
   

6. To alleviate the storm water run-off problem the City, as a condition to the removal of the boat repair prohibition, agreed to install infiltration trenches through which this run-off from the parking lot will pass before entering the basin. The City further agreed to provide oil/fuel spill control devices at the facility and to monitor the water quality in the basin and report its findings to DER.

   
   

7. The infiltration trenches are designed to treat the first one-half inch of rainfall falling on this parking lot before it reaches the basin. The heaviest load of pollutants from paved surfaces used by automobiles is carried by the first surge of rainwater; therefore, a system designed to treat the first one-half inch of run-off is acceptable.

   
   

8. The direct, untreated discharge of storm water into the yacht basin contributes more pollutants including oils, greases and heavy metals, to the basin than would the performance of minor boat and motor maintenance. Accordingly, the net result of allowing minor boat and motor maintenance coupled with the installation of the infiltration trenches will result in higher water quality in the basin. Petitioners contention that these infiltration trenches will treat only a small portion of the total storm water run-off entering the

   basin, while true, over- looks the maxim that half a loaf is better than no bread at all. No evidence was submitted that petitioners, as well as the majority of the population of the City of Cape Coral, are willing to pay the taxes required to raise the funds necessary to provide such treatment of all storm water run-off entering the basin.

   
   

9. The permit proposed to be issued contains provisions which have been accepted by the City of Cape Coral. These include a requirement that the city provide oil/fuel spill control devices at the yacht basin; that all boat owners be provided with written information concerning protection of the basin's water quality; that only chlorine and biodegradable cleaning agents be used at the facility; and finally, the City submit to DER extensive water quality data for the basin through at least 1989, to permit a closer monitoring of the water quality in the basin by DER to insure acceptable water quality standards maintained.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings.

    
    

11. Although Jerabeck is listed as Petitioner in these proceedings the City of Cape Coral has the ultimate burden to prove that it is entitled to the permit modification sought. In presenting the application file and documentary evidence submitted to DER into evidence the City of Cape Coral established a prima facie case; and the burden shifted to Petitioner to rebut this prima facie case. Florida Department of Transportation v. J. W. C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

12. Since the basin is not an outstanding Florida Water or adjacent to such a water the City need show only that the requested permit modification would not be contrary to the public interest and that the project will not result in water quality violations in state waters. Section 403.913, Florida Statutes.

    
    

13. The proposed modification to the permit, coupled with the conditions established by DER in the Notice of Intent to Issue, is not contrary to the public interest and will not result in a degradation of the water quality of Godman Yacht Basin. The evidence submitted by Petitioner, by the testimony of concerned residents along Flamingo Canal, is basically that removal of the restrictions will increase the population density of the basin with the concomitant increase in noise and pollution. No credible evidence was presented to show that removal of the restrictions will have such a result. From all of the evidence submitted it is clear that the proposed modification is not contrary to the public interest and will not result in water quality violations in the basin. It is

RECOMMENDED that a Final Order be entered modifying dredge and fill permit 36-0710935 to delete therefrom the prohibition against minor boat and engine repair in the basin, subject to the City providing oil/fuel spill control devices, infiltration trenches, written information to boat owners concerning the protection of the basin's water quality, restriction on use of cleaning agents in the basin, and the submission of water quality sampling tests to DER.

ENTERED this 10th day of August, 1987, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1987.

COPIES FURNISHED:

Oldrich Jerabeck 5728 Flamingo Drive

Cape Coral, Florida 33915

William M. Powell, Esquire Post Office Box 150027

Cape Coral, Florida 33915-0027

Richard Grosso, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

ANN AND OLDRICH JERABEK,

Petitioners,

vs. OGC FILE NO. 87-0098

DOAH FILE NO. 87-1657

CITY OF CAPE CORAL and STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

On August 11, 1987, the Hearing Officer appointed in this case completed and submitted his Recommended Order to the Department and all other parties. A copy of that Order is attached as Exhibit I.

Pursuant to Florida Administrative Code Rule 17-103.200(1) and Section 120.57(1)(b), Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. None of the parties have submitted exceptions.

The Recommended Order thereupon came before me as the head of the Department for final agency action. While no exceptions were filed, I believe one comment should be made regarding the Recommended Order, to avoid confusion in the conduct of further hearings. The Hearing Officer stated, in his Conclusions of Law, that the City of Cape Coral established a prima facie case for entitlement to the requested permit modification by presenting the application file along with documentary evidence previously submitted to the Department of Environmental Regulation, and that the burden then shifted to Petitioners to rebut the prima facie case. The case cited by the Hearing Officer, however, Florida Department of Transportation v J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981), states that the "preliminary showing" of the file and documents presented by a permit applicant is not necessarily sufficient:

To what extent it would be advisable or necessary for this preliminary presentation by the applicant to be further expanded would depend, to a large extent, on the nature of the objections raised by the petitioner requesting a hearing.

Id. at 788. As J.W.C. further observes, the ultimate burden of persuasion remains with the applicant. It is the obligation of the objecting petitioner to allege by appropriate pleadings or otherwise what facts are in dispute with

regard to the permit application. With regard to those aspects of the application where no dispute has been identified, the Hearing Officer is correct in stating that the applicant has provided a "prima facie case" of entitlement by submitting the application and documentary evidence. For those issues properly in dispute, however, it would be highly unlikely that such a submission would be sufficient to meet the applicant's ultimate burden of persuasion.

Rather, in order for a hearing officer's findings on any disputed fact issue to be upheld as supported by competent substantial evidence of record, the applicant would have to adduce "creditable and credited evidence" in support of the application and documentary evidence in order to provide reasonable assurances of entitlement to a permit. Id. at 789.

This qualification of the Hearing Officer's statement does not warrant overturning his Recommended Order. The Recommended Order sets forth sufficient findings of fact to support the recommendation. Since there is no transcript of the hearing, I am in no position to review the adequacy of those findings.

Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). I also want to emphasize that I do not see the permit hearing process as requiring onerous proof requirements being imposed upon an applicant simply because someone has a generalized objection to the application. To help avoid this unnecessary expense and waste of resources. I instruct Department staff and encourage hearing officers to use prehearing stipulations, conferences or orders whenever possible to narrow the issues in dispute set forth the order of proof and otherwise limit the adversarial process. While I understand this may sometimes be difficult particularly in pro se cases. I hope it can be done whenever possible.

Having considered the Recommended Order, the pleadings and other documents submitted in this case, it is

ORDERED:

That the Hearing Officer's Recommended Order is adopted in its entirety as the final action of this agency except as noted above. Permit application number 36-0710935 is hereby MODIFIED in the manner approved in the Recommended Order.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filing within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 21st day of September, 1987, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to S. 120.52 Florida States, with the designated Department clerk, receipt of which is hereby acknowledged.

9-23-87

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to OLDRICH JERABEK, 5728 Flamingo Drive Cape Coral, Florida 33915; WILLIAM M. POWELL. Attorney for City of Cape Coral, Post Office Box 150027, Cape Coral, Florida 33915-0027; and to RICHARD GROSSO, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee. Florida 32399- 2400, on this 23rd day of September, 1987.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DANIEL H. THOMPSON

General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 87-001657

Orders for Case No: 87-001657