STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO JOSEPH BERGER and )

KATHLEEN D. BERGER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1293

) JEMAAM, INC. and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing on May

17 and May 18, 1988, in Fort Myers, Florida.

APPEARANCES

For Petitioners: Norman A. Hartman, Jr., Esquire

Goetz, Hartman & Landsteiner Post Office Box 6844

Fort Myers, Florida 33911

For Respondent Kempton O. Logan, Esquire JEMAAM: Post Office Box 2563

Fort Myers, Florida 33902

For Respondent Goeffrey D. Smith, Esquire DER: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

The Petitioners filed a request for an administrative hearing to contest the decision of the Respondent, FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION to issue the Respondent, JEMAAM, INC., a dredge and fill permit to reconfigure and relocate portions of the dock located at Island's End Condominium (Phase III). The Petitioners allege that the revised dock would cause great damage to the water quality and the aquatic habitat in the area. Therefore, the project is contrary to the public interest and the permit should be denied.

All of the parties agreed at the hearing that the order of proof would be as follows:

1. The Respondent JEMAAM, INC., the permit applicant, would present evidence first. The Respondent JEMAAM was required to make a preliminary showing to the Hearing Officer that it was entitled to a permit and could

   provide the Respondent DER with reasonable assurances that water standards would not be violated and the project would not be contrary to the public interest.

   
   

2. The Respondent DER would present evidence second. The Respondent DER was required to present evidence as to what criteria was considered by the agency to balance interests before the Notice of Intent to Issue a permit was filed.

   
   

3. The Petitioners would present evidence third. The Petitioners had the burden of proving the truth of the facts asserted in the administrative complaint involving the areas of controversy.

During the hearing, the Respondent JEMAAM, INC., presented six witnesses and introduced nineteen exhibits as well as an aerial print which has been marked as DER Exhibit #17. The Respondent DER called two witnesses and introduced seventeen exhibits. The Petitioners called one witness and introduced seven exhibits. All of the exhibits were admitted into evidence.

Respondent JEMAAM'S Exhibit #1 was admitted for the limited purpose of showing the planned location of the dock in January of 1984. No additional evidence was presented, and the evidentiary portion of the hearing was closed on May 18, 1988. The Petitioners and the Respondent DER were granted leave to file written closing arguments after the hearing. These arguments were received by the Hearing Officer on May 26, 1988, and May 27, 1988. At that time, the hearing was completed.

A transcript of the hearing was not ordered. Proposed findings of fact and conclusions of law were submitted by the parties. Specific rulings on the proposed findings of fact are found in the attached Appendix.

ISSUE

Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL

REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?

FINDINGS OF FACT

1. The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure.

   
   

2. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER.

   
   

3. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM

   has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities.

   
   

4. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance.

   
   

5. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows:

   
   

   1. Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows.

      
      

   2. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock.

      
      

   3. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat.

      
      

   4. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats.

      
      

   5. The dock may be within the Estero Bay Aquatic Preserve.

      
      

6. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint:

   
   

   1. There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area.

      
      

   2. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area.

      
      

   3. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area.

   4. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar.

      
      

   5. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve.

      
      

7. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur.

   
   

8. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings does not have jurisdiction to review any of the matters set forth in the administrative complaint which involve alleged misrepresentations made to the Petitioners during their purchase of their condominium unit. Those matters are within the jurisdiction of the circuit court and may be covered by Chapter 718, "Condominium Act," Part V, Florida Statutes.

   
   

10. The Division has jurisdiction over the parties and the subject matter in the administrative complaint involving areas of controversy about the Notice of Intent to Issue a permit to allow the reconfiguration and relocation of portions of the dock. As a matter of law, the hearing should not deal anew with past permitting decisions with respect to the original project already constructed. Such matters are historical and beyond the scope of the hearing. Friends of the Everglades Inc. v. State of Florida Department of Environmental Regulation, 496 So.2d 181 (Fla. 1st DCA 1986).

    
    

11. The Petitioners have standing to bring the Notice of Intent to Issue before the Division of Administrative Hearings because their substantial interests are affected by the Respondent DER's determination that a permit should be issued to the Respondent JEMAAM. The standing requirement is satisfied by the Petitioners in this case because they own real property adjacent to the dock and any damage to the water quality and aquatic habitat caused by the proposed project would affect their property. Hillsboro-Windsor Condo Ass'n v. D.N.R., 418 So.2d 359 (Fla. 1st DCA 1986).

    
    

12. The State of Florida Department of Environmental Regulation has regulatory authority over the relocation of the dock extension arm as such activity will entail dredging and filling activity in surface waters. Section 409.913(1), Florida Statutes. Also, the Respondent JEMAAM agreed to the Department's jurisdiction in the Amended Consent Order of December 16, 1987.

    
    

13. When an administrative complaint is filed which sets forth areas of controversy regarding a permit, a hearing de novo takes place before a Hearing

    Officer on the permit application. The applicant is then required to make a preliminary showing of "reasonable assurances" before the Hearing Officer which demonstrates its entitlement to the permit. Florida Dept. of Transp. v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Once a prima facie case is demonstrated by the applicant, the areas of controversy brought forth by the Petitioners are heard. The Petitioners have the burden to prove the truth of the facts asserted in the administrative complaint. Florida Dept. of Transp., supra.

    
    

14. To demonstrate entitlement to a dredge and fill permit, an applicant must provide DER with reasonable assurances that the project (1) will not cause water quality standards to be violated and (2) will not be contrary to the public interest. Section 403.918, Florida Statutes.

    
    

15. Although water quality was not raised as an issue by the Petitioners, the evidence at the hearing revealed that the Respondent JEMAAM has provided DER with reasonable assurances that the water quality standards for Class III Surface Waters will not be violated pursuant to Section 403.918(1), Florida Statutes.

    
    

16. Based upon the evidence presented at hearing, the areas of controversy raised by the Petitioners were met with "reasonable assurances" from the applicant that the project will not be contrary to the public interest.

    
    

17. The Respondent JEMAAM established a prima facie case which substantially supported the Respondent DER's decision to issue the Notice of Intent. A review and consideration of all of the criteria set forth in Section 403.918, Florida Statutes, reveals that the public and private interests can be balanced in this case if a permanent, fixed handrail is placed along the entire landward portion of the dock to discourage the location of boats in that area in addition to all of the other requirements and conditions placed in the Notice of Intent to Issue.

    
    

18. The Petitioners did not provide the Hearing Officer with contrary evidence of equivalent quality which was sufficient to establish that the project was contrary to the public interest. As a result, the Hearing Officer does not have a legal or rational basis upon which to recommend denial of the DER permit. Department of Transp., supra.

Based upon the foregoing, it is RECOMMENDED:

That Respondent STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

grant to Respondent JEMAAM, INC., dredge and fill permit number 361414445 pursuant to the Notice of Intent to Issue dated March 2, 1988, subject to the following modification:

Specific Condition Number 6 should be amended to read as follows:

6. A permanent, fixed handrail of a design sufficient to discourage mooring of and access from boats along the landward side of the southern dock extension shall be construction along the entire landward portion of the dock. The handrail may be removed along the southernmost 50' of the dock arm if the applicant demonstrates the existence of sufficient water depths for safe boat mooring and prevention of propeller dredging after construction. No handrail removal shall be made unless and until DER gives written approval for such activity.

DONE AND ENTERED this 28th day of June, 1988, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1293

Petitioners' proposed findings of fact are addressed as follows:

1. Included in H.O. #2. The Notice of Intent is part of the pleadings and need not be reiterated in full.

2. Accepted. Included in H.O. #3.

3. Included in Conclusions of Law.

4. Included in H.O. #3.

5. Included in H.O. #4.

6. Accepted.

7. Rejected. Irrelevant.

8. Rejected. Irrelevant.

9. Rejected. See H.O. #6(b).

10. Rejected. See H.O. #6(c)(d).

11. Rejected. Not set forth in administrative Complaint. DER Exhibit #12 reveals that that impact of the project was considered by DER. The witness Beevers testified that he considered the impact of the project on other projects during his evaluation and review of the project for permitting purposes.

12. Rejected. See H.O. #6(c).

13. Rejected as to the issue of aesthetics as it is not the subject matter of this proceeding. Accepted that at low tide vessels would have to pass very close to the sandbar opposite the dock. However, the applicant is required to provide "reasonable assurances," not "perfect assurances." See H.O. #6(d).

14. Accepted.

15. Rejected. See the two written reviews complete by Beevers. DER Exhibits #9 and #12.

16. Accepted that the Petitioners have standing. Rejected that "reasonable assurances" have not been provided by Respondent JEMAAM.

17. Rejected. Involves a conclusion of law as opposed to a finding of fact.

Respondent JEMAAM's proposed findings of fact are addressed as follows:

1. Accepted. See H.O. #2.

2. Accepted.

3. Accepted as the findings coincide with the Hearing Officer's findings. See H.O. #6 and DER Exhibits #9 and #12. David Key was not accepted as an expert by the Hearing Officer and therefore his testimony was not given weight by the Hearing Officer.

1. Accepted. See H.O. #6b.

2. Accepted. See H.O. #6c.

3. Accepted. See H.O. #6a.

E. Accepted. See H.O. #6c and #6d.

1. Accepted.

2. Accepted.

3. Accepted.

4. Accepted.

5. Rejected. The focus of this hearing is on the provision of "reasonable assurances" by the applicant. It does not focus on the mind set of the Petitioners. 3I is redundant on that 3F was accepted by the Hearing Officer for the finding that the permit would not adversely affect the public health, safety, welfare or property of others.

6. Rejected. Irrelevant to this proceeding.

   
   

   Respondent DER's proposed findings of fact are addressed as follows:

   
   

   1. Accepted. See H.O. #1.

   2. Accepted. See H.O. #4.

   3. Rejected. Irrelevant.

   4. Rejected. Irrelevant

   5. Rejected. Irrelevant.

   6. Rejected. Irrelevant.

   7. Rejected. Irrelevant.

   8. Rejected. Irrelevant.

   9. Rejected. Irrelevant.

   10. Rejected. Irrelevant.

   11. Rejected. Irrelevant.

   12. Accepted. See H.O. #3.

   13. Accepted. See H.O. #2.

   14. Accepted. Testimony of Beever and Fry, DER Exhibits #2, #8, #9, and

       #12.

       
       

   15. Accepted. See H.O. #2.

   16. Accepted.

   17. Accepted. See H.O. #6d.

   18. Accepted. See H.O. #6a.

   19. Accepted. See H.O. #6c.

   20. Accepted. See H.O. #6b.

   21. Accepted.

   22. Accepted. See H.O. #6e.

   23. Accepted.

   24. Accepted. This issue was not raised in the Petitioners' areas of

controversy set forth in their administrative complaint.

COPIES FURNISHED:

Norman A. Hartman, Jr., Esquire Goetz, Hartman & Landsteiner Post Office Box 6844

Fort Myers, Florida 33911

Kempton P. Logan, Esquire Post Office Box 2563

Fort Myers, Florida 33902

Geoffrey D. Smith, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 88-001293

Orders for Case No: 88-001293