STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY )

AFFAIRS, )

)

Petitioner, )

)

vs. ) CASE NOs. 90-4292DRI

) 91-4656DRI

) JOHN SMALE and MONROE COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a hearing in the above- styled cases on January 10, 1992.

APPEARANCES

For Petitioner: Cristina E. Brochin

Assistant General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Robert N. Sechen, Esquire John Smale: Blackwell & Walker, P.A.

2400 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

For Respondent, No appearance. Monroe County:

STATEMENT OF THE ISSUES

At issue is whether an order recommending denial of the subject permits and variance should be rendered.

STATEMENT OF THE CASE

1. On June 1, 1990, petitioner, Department of Community Affairs (Department) filed an appeal, pursuant to Section 380.07, Florida Statutes, with the Florida Land and Water Adjudicatory Commission (FLWAC) from development orders (building permits numbered 9020000133) of respondent, Monroe County, issued pursuant to the request of respondent, John Smale (Smale), owner, for permission to build a single-family residence, along with the electrical, mechanical and plumbing activities incident thereto. The gravamen of the Department's appeal was that the development orders authorized the construction

   of a residence with a setback of less than fifty feet from, inter alia, a natural water body and an unaltered shoreline, contrary to the Monroe County land development regulations. By letter of June 28, 1990, FLWAC forwarded the matter to the Division of Administrative Hearings (DOAH), and requested the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. Such matter was docketed as DOAH Case No. 90- 4292DRI.

   
   

2. Thereafter, on May 24, 1991, the Department filed a second appeal pursuant to Section 380.07, Florida Statutes, with FLWAC from a development order (Resolution No. 05-91) issued by the Planning Commission of Monroe County, which granted the request of Smale for a variance to construct the single-family residence he had theretofore received building permits for (DOAH Case No. 90- 4292DRI) within thirty feet of an unaltered shoreline. The gravamen of the Department's appeal from that development order was that it was not consistent with the variance criteria established by the Monroe County Code. By letter of July 24, 1991, FLWAC forwarded the matter to DOAH, and requested the assignment of a hearing officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. Such matter was docketed as DOAH Case No. 91-4656DRI, and consolidated with DOAH Case No. 90-4292DRI.

   
   

3. By order of July 31, 1991, a final hearing in these cases was scheduled for November 7, 1991, but at the request of Smale was rescheduled for February 20, 1992. However, on December 20, 1991, a "Notice of Respondent's Intent to Limit Participation" was filed by Smale, wherein he averred:

   
   

   . . . SMALE hereby withdraws his pending discovery requests in this matter and gives notice that he does not intend to respond further to any discovery directed to him in this matter. SMALE does not intend to participate in the final hearing in this matter. SMALE does not intend, however, to waive his rights to notice of all further matters in this proceeding, to submit proposed findings of fact and conclusions of law, to object to the Hearing Officer's Recommended Order, and to participate in

   proceedings before the Florida Land and Water Adjudicatory Commission.

   
   

4. In response to Smale's notice of intent to limit participation, the Department filed, inter alia, a motion to cancel the final hearing and issue a recommended order denying the subject permits and variance.1/ By order to show cause, dated December 20, 1991, Smale was directed to show good cause in writing, within ten days of the date of such order, as to why a recommended order denying the subject permits and variance should not be rendered. By agreed order of January 7, 1992, Smale was granted an extension until January 9, 1992, to respond to the order to show cause. Smale did not, however, file any response to the order to show cause, and at the hearing of January 10, 1992, on the Department's motion for entry of a recommended order of denial and the order to show cause, Smale offered no argument in opposition to the entry of such an order.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 380.07(3), Florida Statutes.

   
   

6. This is an appeal, pursuant to Section 380.07, Florida Statutes, from a development order (building permits numbered 9020000133) of Monroe County granting Smale's request for building permits to construct a single-family residence in Stirrup Key subdivision, Monroe County, Florida, as well as an appeal from a development order (Resolution No. 05-91) of Monroe County granting Smale's request for a variance from the setback requirements of the Monroe County Code incident to such construction. Pursuant to the provisions of 120.57(1), Florida Statutes, the propriety of Monroe County's action was to be reviewed de novo. Transgulf Pipeline Co. v. Board of County Commissioners of Gadsden County, 438 So.2d 876 (Fla. 1st DCA 1983).

   
   

7. The ultimate burden of persuasion in these consolidated cases rested on Smale, as the applicant, to establish his entitlement to the building permits and variance authorizing his proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990), and Florida Department of Transportation vs. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, Smale announced his intention not to participate in the final hearing and, notwithstanding the order to show cause which apprised him that he carried the ultimate burden of persuasion, did not wavier from such position. Under such circumstances, it would be a useless and expensive gesture to convene a formal hearing where the party carrying the burden has elected not to offer any proof.

RECOMMENDATION

Based on the foregoing statement of the case and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a

final order reversing Monroe County's decision to issue the subject permits and

variance.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this

29 day of January 1992.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29 day of January 1992.

ENDNOTES

1/ The Department's motion was filed December 20, 1991, and also requested an order compelling discovery and that Smale be directed to pay the Department's travel expenses, which it had incurred in traveling to Key West for the November 7, 1991, hearing that was continued at Smale's request, and which Smale had agreed to pay were the case continued. At the hearing of January 10, 1992, the Department withdrew its motion to compel, as well as its request that Smale be ordered to pay the travel expenses.

COPIES FURNISHED:

Christina E. Brochin, Esquire

G. Steven Pfeiffer, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100

Mr. John Smale

3 Grandin Riverview Cincinnati, Ohio 45208

Mr. Richard G. Colville

U.S. 1 at Gulfview Drive Islamorada, Florida 33036

Randy Ludacer, Esquire Monroe County Attorney Monroe County Courthouse

310 Fleming Street

Key West, Florida 33040

Robert Sechen, Esquire 2400 Ameri First Building One Southeast Third Avenue Miami, Florida 33131

David Maloney, Esquire Florida Land and Water

Adjudicatory Commission The Capitol - Room 209

Tallahassee, Florida 32399-0001

Douglas M. Cook, Director Planning & Budgeting

Executive Office of the Governor The Capitol, PL-05

Tallahassee, Florida 488-5396

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004292DRI

Orders for Case No: 90-004292DRI