STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESIDENTS OF KEY LARGO OCEAN ) SHORES, )

)

Petitioners, )

)

vs. ) CASE NO. 91-0252

)

DOLPHINS PLUS and FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents )

) CLARENCE C. HOBDY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0253

)

DOLPHINS PLUS and FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on June 14, 1991, in Key Largo, Florida.

APPEARANCES

For Petitioners: Kurt Winselmann, pro se

135 Ocean Shores Drive Key Largo, Florida 33040

Clarence Hobdy, pro se

105 Ocean Shores Drive Key Largo, Florida 33037

For Respondent, Donna E. Albert, Esquire Dolphins Plus: Fertig and Gramling

750 S.E. Third Avenue, Suite 200 Fort Lauderdale, Florida 33316

For Respondent, Cecile I. Ross, Esquire Department of Department of Environmental Environmental Regulation

Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Respondent, Dolphins Plus, has provided reasonable assurances that the fence and stranding pen proposed in its application for Permit No. 441808385 meet the water quality and public interest criteria in Section 403.918, Florida Statutes, and Florida Administrative Code Chapter 17 (1990).

PRELIMINARY STATEMENT

Respondent, Department of Environmental Resources (the "Department"), issued Permit No. 441808385 on September 11, 1990, for the construction of a fence in a manmade canal to be used as a stranding pen for marine mammals.

Petitioners protested the issuance of the permit by letters filed with the Department on November 16, 1990, and requested a formal hearing.

The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on January 10, 1991, and assigned to the undersigned on January 16, 1991. A formal hearing was scheduled for February 14, 1991, in each of these proceedings. The separate proceedings were consolidated pursuant to the Order Granting Consolidation entered on February 26, 1991, and the formal hearing was rescheduled for June 14, 1991.

At the formal hearing, Respondent, Dolphins Plus (the "Applicant") presented the testimony of five witnesses. The Applicant's five witnesses were each qualified as experts without objection. 1/ Respondent, Department of Environmental Regulation (the "Department"), presented the testimony of John Abendroth, who was qualified as an expert in water quality and assessment of impacts of dredge and fill projects. Respondents jointly offered six exhibits for admission in evidence. The Respondents' exhibits were admitted in evidence over objection. 2/

Petitioners presented the testimony of three lay witnesses, Kurt Winselmann, Clarence Hobdy, and Al Jones. Petitioners, Winselmann and Hobdy tendered themselves as experts for the purpose of offering expert testimony. The tenders were not accepted. Petitioners had responded to the Department's Interrogatories by indicating no expert testimony would be presented during the formal hearing. Respondents objected to the offer of expert testimony by Petitioners, Winselmann and Hobdy, based upon the Petitioners' responses to interrogatories and upon the prejudice which would be caused to Respondents by the acceptance of last minute expert testimony.

Petitioners presented in evidence a plat depicting the neighborhood of Key Largo Ocean Shores. Petitioners additionally proffered newspaper articles and other documents which were not admitted in evidence.

A transcript of the record of the formal hearing was not requested by any party. Respondents timely filed proposed findings of fact and conclusions of law on July 9, 1991. Petitioners timely filed their proposed findings of fact and conclusions of law on July 8, 1991. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The proposed project is a chain link fence of approximately 120 linear feet which is currently in existence and located within a dead-end artificial basin (the "canal") in Class III waters in Key Largo, Monroe County, Florida. The purpose of the fence is to create a stranding pen to house marine life (the "stranding pen").

   
   

2. The stranding pen is intended for use in rehabilitating and caring for injured, sick, or otherwise quarantined marine mammals, turtles, and manatees ("marine life"). Marine life housed in the stranding pen at the time of the formal hearing consisted of two baby pilot whales. The pilot whales have been housed in the proposed project since the stranding pen was erected on April 13, 1991. Marine life housed in the stranding pen during the life of the proposed project will be removed or released upon rehabilitation. No sharks will be housed in the stranding pen at any time.

   
   

3. The Applicant is an active member of the Marine Mammal Stranding Network (the "Network"). The Network is a volunteer organization which exists for the purpose of caring for and rendering rehabilitative treatment to injured and sick marine mammals. The Applicant is fully authorized and licensed to rehabilitate marine life and participate in the Network.

   
   

4. The proposed project will benefit the conservation of marine life, including endangered and threatened species. The survival of pilot whales currently housed in the stranding pen, as well as future stranded marine life, is dependent upon the existence of a stranding pen.

   
   

   Water Quality

   
   

5. The proposed project will have no adverse impact on water quality standards. Reasonable assurances that applicable water quality standards will not be violated by the proposed project have been provided through extensive water quality tests and conditions of approval of the proposed project.

   
   

6. Flushing of the basin is adequate to preserve water quality in the future. Water quality samples taken from the stranding pen prior to the arrival of the pilot whales and on a weekly basis after the arrival of the pilot whales were substantially similar. Results of the water quality testing and evaluation revealed no degradation of the water quality from either the proposed project or the pilot whales. 3/

   
   

7. Water quality samples were collected and evaluated by experts in accordance with scientifically accepted principals and methods. An additional sample was collected from the stranding pen and evaluated by an environmental consulting firm. The results of the various water quality tests were also evaluated by the Department. The Department and outside experts determined the proposed project will have no adverse impact on water quality standards.

   
   

8. The parameters selected for testing the water samples were chosen to determine the impact of the whales and future inhabitants on the water in the stranding pen. Among other things, the experts tested for the presence of fecal coliform and dissolved oxygen. Readings for fecal coliform and dissolved oxygen are significant indicators of potential adverse impacts on the health of individuals. 4/ The results of all water quality tests performed in and next to the whale pen were within acceptable state standards.

9. Conditions of approval of the proposed project are sufficient to assure compliance with water quality standards in the future. Specific permit conditions 5, 6, 7, and 8 require the Applicant to continually monitor the water quality in the basin and adjacent canal for the life of the permit. Tests are specifically required for coliform, temperature, and dissolved oxygen. The water within the basin and adjacent waters must remain in compliance with applicable water quality standards. If applicable water quality standards are violated, either remedial action must be taken by the Applicant or the fence used to form the stranding pen will be removed.

   
   

   Public Health, Safety, and Welfare

   
   

10. The applicant has provided reasonable assurances that the project is not contrary to the public interest. 5/ Non- environmental impacts on the property of others are not considered by the Department in assessing the qualifications of permits for dredge and fill projects and no evidence was presented that the public will be harmed in any relevant way by the proposed project.

    
    

11. The proposed project will not adversely affect the fishing, recreational value, or marine productivity in the vicinity of the project. The fenced portion of the basin, which currently contains marine mammals, remains as a viable habitat for marine life. Required monitoring of water quality within the basin and adjacent waters in the future will ensure that its productivity will not be impacted.

    
    

12. The proposed project, including the fence used to form the stranding pen, will be a permanent fixture. Use of the proposed project will fluctuate with the introduction and release of marine mammals. There are no significant historical or archaeological resources within the vicinity of the project site to be impacted by the proposed project. 6/

    
    

13. There will be no adverse cumulative impacts from the proposed project. 7/ The current condition and relative value of the functions being performed in the vicinity of the project have not been affected by the installation of the fence used to form the stranding pen and the Department does not expect any reduction in such values. Required monitoring of the basin and adjacent waters in the future will ensure that current values are not being reduced. The proposed project will not adversely affect the public health, safety, or welfare or the property of others.

    
    

    Navigation

    
    

14. The proposed project does not adversely affect navigation. A bridge over the canal limits the size and type of boats which may access the area in which the proposed project is located. Boats using the canal have sufficient space to maneuver free of any impediment from the stranding pen.

    
    

15. A 27 foot private pleasure craft and a Sanctuary Patrol boat in excess of 30 feet in length were both able to turn completely around in the canal without entering the boat basin where the proposed project is located. Boats presently owned by the Petitioners are less than 27 feet in length, including engines. Even if access to the boat basin were needed to maneuver a particular boat, more than 100 feet of the boat basin is available for such purposes before encroaching on the proposed project.

16. On the day that the Sanctuary Patrol boat was present in the canal, a small craft advisory was in effect. The Sanctuary Patrol boat experienced no difficulty maneuvering within the canal. Wind has little affect on surface conditions in the canal. The project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling.

    
    

    Petitioner's Case

    
    

17. Petitioners participated in this proceeding for a frivolous purpose. Petitioners presented no evidence to support the allegations of their pleadings or to rebut the evidence presented by Respondents. Although Petitioners called witnesses in their own behalf, the testimony of those witnesses was neither relevant nor material to Petitioners' pleadings concerning the alleged inadequacy of the conditions of the permit imposed by the Department. The gravamen of the evidence presented by Petitioners concerned deprivation of private property rights and diminution of property value. Considering the evidence presented by Petitioners, there was a complete absence of a justiciable issue of law or fact.

    
    

18. Petitioners presented no expert testimony to rebut the testimony offered by Respondents. Petitioners offered no factual evidence in support of their position. Petitioners' presentation was in the form of opinion, conjecture, speculation and commentary. The testimony given by fact witnesses called by Petitioners was not material to Petitioners' claims and did not support relevant allegations contained in the Petition. Petitioners consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. Petitioners presented no competent evidence whatsoever to rebut the testimony or evidence presented by the Applicant or the Department.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

20. The Department has permitting jurisdiction over the proposed project pursuant to Chapter 403, Florida Statutes, and Florida Administrative Code Chapter 17. The site of the proposed project is within Class III waters.

    
    

21. The Applicant provided reasonable assurances that the proposed project will not cause water quality violations pursuant to Section 403.918(1), Florida Statutes, and Florida Administrative Code Chapter 17.

    
    

22. The Applicant provided reasonable assurances that the proposed project is not contrary to the public interest. Section 403.918(2)(a), Florida Statutes, prescribes seven criteria which must be balanced by the Department when determining whether the Applicant has provided the requisite reasonable assurances. The Department properly balanced the following criteria:

    
    

    1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

    2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

       
       

    3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

       
       

    4. Whether the project will adversely affect the fishing or recreational value or marine productivity in the vicinity of the project;

       
       

    5. Whether the project will be of temporary or permanent nature;

       
       

    6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061, F.S.; and,

       
       

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       
       

23. The proposed project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. Expert testimony and documentary evidence presented by Respondents was not rebutted by Petitioners. The fact that Petitioners will be unable to navigate in the portion of the boat basin proposed to be fenced off does not prevent the use of the canal or adequate navigation in the remaining portion of the basin. Petitioners' desire to preserve the entire basin for their use constitutes a private interest rather than an adverse impact on navigation within the meaning of the public interest criteria in Section 403.918(2)(a), Florida Statutes. Clarke, et al., v. Melton and State, Department of Environmental Regulation, 12 FALR 4947, 4960 (DER Final Order 1990) (citing West, et al. v. Ratkovic and Department of Environmental Regulation, 12 FALR (DER Final Order 1990).

    
    

24. The proposed project will not adversely affect: the public health, safety, or welfare or the property of others; the conservation of fish and wildlife, including endangered or threatened species, or their habitats; the fishing or recreational value or marine productivity in the vicinity of the project; significant historical or archaeological resources; or the current condition and relative value of functions being performed by areas affected by the proposed activity. The project will be permanent in nature. The project will not have a cumulative impact pursuant to Section 403.919, Florida Statutes.

    
    

25. Florida Administrative Code Rule 17-312.813, regarding general permits for the installation of fences, does not apply to the proposed project. The requirements of the general permit are irrelevant in assessing the qualifications of the permit for the proposed project. Respondent, Dolphins Plus, has correctly applied for a dredge and fill permit pursuant to Florida Administrative Code Rule 17-312.070.

    
    

26. Petitioners presented evidence in an attempt to prove that the proposed project will adversely affect their property rights and is contrary to local zoning regulations. Evidence relating to non-environmental impacts on the

    property of others is irrelevant to the assessment of dredge and fill projects under Section 403.918, Florida Statutes. Albert v. State, 444 So.2d 8, 12 (Fla. 1984); Miller v. State, Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987); Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983); State, Department of Environmental Regulation v.

    Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982).

    
    

27. Section 120.59(6), Florida Statutes, provides in relevant part that a prevailing party may recover reasonable attorneys fees from a nonprevailing adverse party who has participated in any proceeding pursuant to Section 120.57(1) for an improper purpose. Petitioners are nonprevailing adverse parties within the meaning of Section 129.59(6)(e) because they failed to substantially change the outcome of the proposed agency action which is the subject of this proceeding. Participation in a proceeding is for an improper purpose if it is primarily for a frivolous purpose.

    
    

28. Participation in a proceeding is frivolous whenever a finding is made that there is a complete absence of a justiciable issue of either law or fact. Whitten v. Progressive Casualty Insurance, Co., 410 So.2d 501, 505 (Fla. 1982); Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). The Florida Supreme Court stated in Whitten that the purpose of awarding attorney's fees is to:

    
    

    ...discourage baseless claims, stonewall defenses and sham appeals...by placing a price tag through attorney's fees awards on losing parties who engage in these activities. Such frivolous litigation constitutes a reckless waste of judicial resources as well as the time and money of prevailing litigants.

    
    

29. A determination of whether a claim is baseless, depends upon the evidence presented by the nonprevailing adverse party and that party's conduct during the proceeding. When the nonprevailing adverse party fails to call witnesses in that party's own behalf, nominally attempts to create an issue by cross-examining witnesses for the opposing party, or otherwise fails to show facts needed to sustain the pleadings, courts have found the purpose to be baseless and frivolous. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980); Kisling v. Woolridge, 397 So.2d 747, 748 (Fla. 5th DCA 1981); White v. The Montebello Corporation, 397 So.2d 326 (Fla. 5th DCA 1981).

    
    

30. Petitioners presented no evidence to support the allegations of their pleadings or to rebut the evidence presented by Respondents. Although Petitioners called witnesses in their own behalf, the testimony of those witnesses was neither relevant nor material to Petitioners' pleadings concerning the alleged inadequacy of the conditions imposed by the Department. The gravamen of the evidence presented by Petitioners concerned deprivation of private property rights and diminution of property value. Petitioners consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence. There was a complete absence of a justiciable issue of law or fact.

    
    

31. Respondent, Dolphins Plus', Motion for Attorneys Fees is granted. In granting the motion for attorney's fees, Petitioners' conduct during the formal hearing and the evidence of record have been considered, including:

1. the immateriality of evidence presented by Petitioners relevant to the issues of law and fact;

   
   

2. Petitioners' demonstrated unfamiliarity with relevant law and the proper scope of this proceeding;

   
   

3. Petitioners' demonstrated inability to distinguish between evidence and argument;

   
   

4. Petitioners' failure to call material witnesses in its own behalf;

   
   

5. Petitioners' repeated attempts to establish issues either by unsworn representations of facts or by arguing with witnesses during direct and cross examination; and

   
   

6. Petitioners' failure to otherwise show facts necessary to sustain the pleadings.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order on the Merits denying Petitioners' protest of the permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order.

Jurisdiction over the issue of the amount of attorney's fees is retained and shall be determined in a separate formal hearing to be conducted only in the event the parties are unable to agree on the amount of attorney's fees that is reasonable.

RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of August, 1991.

DANIEL MANRY

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 5th day of August, 1991.

ENDNOTES

1/ The five witnesses and their area of expertise are: Richard Borguss, Marine Mammalogy; Captain Spencer C. Slate, Navigation; Chris Blankenship, Marine Biology; Brian Finney, Water Quality Analyst and Environmental Evaluation; Keith Ocha Water Sample Collection.

2/ The six exhibits were: the permit application and permit, admitted as Respondents' Exhibit 1; a photograph of the bridge under which all boats (with the exception of a flats boat) must pass to enter the canal system and turning

basin, admitted as Respondents' Exhibit 2; a videotape of Captain Spencer Slate maneuvering and navigating a 27 foot pleasure craft in the canal and boat basin, admitted as Respondents' Exhibit 3; a videotape of a 30 foot Sanctuary Patrol boat maneuvering and navigating in the canal and boat basin, admitted as Respondents' Exhibit 4; various water quality tests performed along with results and analysis, admitted as Respondents' Exhibit 5; and various additional photographs relevant to the issues for determination, admitted as Respondents' Exhibit 6.

3/ A substance floating on the surface of the water and thought by Petitioners to be some sort of pollution or whale defecation was identified as algae. The presence of algae was not related to the presence of whales.

4/ The only real change, which was slight, pertained to petroleum distillates. This is generally caused by boats.

5/ See Sec. 403.918(2)(a), Fla. Stats., and discussion in Conclusions of Law, para. 4, infra.

6/ See Sec. 267.061, Fla Stats. 7/ Sec. 403.919, Fla. Stats.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 91-0252 AND 91-0253

Petitioners, Residents of Key Largo Ocean Shores, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Respondent did not submit proposed findings of fact.

The Petitioners' Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Rejected in part as irrelevant and immaterial. Accepted in

part in Finding 1

8-10 Rejected as unsupported by the evidence

11-12 Rejected as irrelevant and immaterial

1. Rejected as unsupported by the evidence

   
   

2. Rejected in part as irrelevant and immaterial. Rejected in part as unsupported by the evidence

   
   

3. Rejected as unsupported by the evidence

   
   

4. Rejected as irrelevant and immaterial

17-18 Rejected as irrelevant and immaterial

19 Rejected for the reasons stated in Conclusions of Law, para. 4.

20-22 Rejected as irrelevant and immaterial

1. Rejected as unsupported by the evidence

   
   

2. Rejected as irrelevant and immaterial

Petitioner, Clarence C. Hobdy, has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Respondent did not submit proposed findings of fact.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-30 Rejected as irrelevant and immaterial

31 Rejected as Conclusion of Law

32-36 Rejected as irrelevant and immaterial

37-39 Accepted in Conclusions of Law

1. Rejected as either unsupported by evidence or irrelevant and immaterial

   
   

2. Rejected as recited testimony

   
   

3. Rejected as unsupported by the evidence

43-44 Rejected as recited testimony

1. Rejected as irrelevant and immaterial

   
   

2. Rejected as recited testimony

47-49 Rejected for the reasons stated

in Findings 5-9

50 Rejected as recited testimony

51-54 Rejected as unsupported by the evidence

55-57 Rejected as a conclusion of law

58-61 Rejected as recited testimony

1. Rejected as unsupported by the evidence

   
   

2. Rejected as a conclusion of law

   
   

3. Rejected as recited testimony

   
   

4. Rejected as a conclusion of law

66-67 Rejected as recited testimony

68 Rejected as unsupported by the evidence

69-70 Rejected as a conclusion of law

1. Rejected as recited testimony

   
   

2. Rejected as irrelevant and immaterial

   
   

3. Rejected as a conclusion of law

74-79 Rejected as recited testimony

80-81 Rejected as irrelevant and immaterial

82 Rejected as recited testimony

83-84 Rejected as a conclusion of law

85-86 Rejected as recited testimony

87-88 Rejected as a conclusion of law

89-97 Rejected as irrelevant and immaterial

1. Rejected as unsupported by the evidence

   
   

2. Rejected as irrelevant and immaterial

Respondents have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs. Respondent did not submit proposed findings of fact.

The Respondents' Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

and immaterial

1. Accepted in Finding 14

2. Rejected as recited testimony or argument

44-49 Accepted in Finding 19

50 Accepted in Finding 18

COPIES FURNISHED:

Carol Browner, 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, FL 32399-2400

Donna E. Albert, Esquire Fertig and Gramling

750 S.E. Third Avenue, Suite 200 Fort Lauderdale, Florida 33316

Cecile I. Ross, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kurt Winselmann

135 Ocean Shores Drive Key Largo, Florida 33040

Clarence Hobdy

105 Ocean Shores Drive Key Largo, Florida 33037

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.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

RESIDENTS OF KEY LARGO OCEAN SHORES,

DOAH CASE NO. 91-0252

Petitioners, OGC CASE NO. 90-1722

DOLPHINS PLUS and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

CLARENCE C. HOBDY,

DOAH CASE NO. 91-0253

Petitioner, OGC CASE NO. 90-1778

DOLPHINS PLUS and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

On August 6, 1991, a hearing officer from the Division of Administrative Hearings submitted his recommended order to the Department of Environmental Regulation (the Department) and to Petitioners Clarence C. Hobdy (Hobdy) and Residents of Key Largo Ocean Shores (Residents). A copy of the recommended order is attached as Exhibit A. The hearing officer filed the recommended order with the clerk of the Division of Administrative Hearings on August 5, 1991.

Petitioner Hobdy filed his exceptions to the recommended order on August 21, 1991. Petitioner Kurt Winselmann, a member of Petitioner Residents, separately filed his exceptions on August 21, 1991. Through an attorney, Petitioner Residents timely filed its exceptions on August 20,

1991. After receiving an extension of time by an order of the Department dated September 19, 1991, Respondent Dolphins Plus (the Applicant) timely filed its motion to strike Petitioners' exceptions and its response to the exceptions on September 30, 1991. The Department filed no exceptions. In the motion for an extension of time, the Applicant agreed to an extension of time for filing this Final Order, until October 9, 1991, approved as part of the order granting the motion. The matter then came before me as Secretary of the Department for final agency action.

BACKGROUND

This proceeding arose after the Applicant received Permit No. 441808385 on September 11, 1990, for the construction of a fence in a manmade canal in Class III waters in Key Largo, Monroe County, Florida. The Applicant intended the fence to enclose an area to be used as a stranding pen to house and care for injured or sick marine animals. The petitioners asserted that they had received no notice of the permit in advance and learned of the project only when its construction began. Hobdy and Residents filed separate petitions protesting the issuance of the permit, alleging adverse impacts on navigation, water quality, safety, and private property values. By an order dated February 26, 1991, the two proceedings were consolidated. On March 11, 1991, the hearing officer granted a motion by the Department to strike from the petitions various issues irrelevant to this

environmental proceeding. The hearing officer went beyond the terms of the Department's motion and ruled irrelevant all evidence and argument not only on land use issues and property values, but also on deprivation of the use of the canal turning basin caused by the fencing.

On June 14, 1991, the hearing officer held a formal administrative

hearing in this matter. After receiving a proposed recommended order jointly filed by the respondents and separate proposed recommended orders from Petitioners Hobdy and Residents, the hearing officer found that the project will benefit the conservation of marine life, will have no adverse impact on water quality or navigation, and is not contrary to the public interest. He further found that the petitioners had participated in this proceeding for an improper purpose, having presented no evidence to support their allegations or to rebut the evidence introduced by the respondents. He noted that "Petitioners consistently demonstrated a lack of knowledge of the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence" and found that, because of the petitioners' lack of evidence, "there was a complete absence of a justiciable issue of law or fact." In his conclusions of law, the hearing officer echoed those findings. Accordingly, he recommended that the Department deny the petitioners' protests of the permit and award reasonable attorney's fees and costs to the Applicant. He made no findings or recommendation on the amount of the fees and costs to be awarded. Instead, he retained jurisdiction to determine the amount of the fees if the parties are unable to agree on the amount that is reasonable.

RULINGS ON EXCEPTIONS

At the outset of ruling on the exceptions to findings of fact and conclusions of law in the recommended order, I confront several difficulties. First, the petitioners have attached no transcript of the hearing to their exceptions, and no other transcript is available. Second, two of the sets of exceptions were filed one day late. Finally, the third

set of exceptions was filed by an attorney who failed to file a prior notice of appearance in this proceeding.

RULINGS ON EXCEPTIONS TO FINDINGS OF FACT

The first of these difficulties bears primarily on my rulings on the exceptions to the findings of fact. The petitioners urge that they need not attach a transcript to support their exceptions to the findings. The petitioners' assertion is unsound as a general proposition. The law is clear that without a transcript there is no basis for overturning a hearing officer's findings. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the hearing officer are not supported by competent and substantial evidence. See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). Moreover, Rule 17-103.200(l) of the Florida Administrative Code specifically requires that ?[a]ny exception disputing a finding of fact .

. . be accompanied by a complete transcript of the hearing." The Department therefore must "reject exceptions not supported by a complete transcript." Chipola Basin Protective Group, Inc. v. Florida Department of Environmental Regulation, 11 F.A.L.R. 467, 470-71 (Fla. DER 1988); see Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982) (upholding nonrule policy of the Department that exceptions not accompanied by complete transcript must be dismissed). In contrast to the facts in Chipola Basin, there is no transcript independently available to the Department to obviate the effect of the failure of the petitioners to file one. Thus, the rule against overturning findings without a transcript compels me to

As for the late filing of two sets of exceptions and the propriety of the filing of the third set of exceptions, I shall rule on those legal issues in the rulings on exceptions to conclusions of law, below.

EXCEPTIONS TO CONCLUSIONS OF LAW

First, I must reject two sets of the petitioners' exceptions in their entirety for untimely filing. Rule 17-103.200(I) of the Florida Administrative Code requires the rejection of any exceptions "not filed (received) in the Office of General Counsel within the 15 days" after the "the date of filing of a Recommended Order with the Clerk of DOAH," the Division of Administrative Hearings. The hearing officer filed

the recommended order in this proceeding with the Clerk of DOAH on August 5, 1991. August 20, 1991, was the deadline for filing exceptions. Petitioner Hobdy filed his exceptions a day later. Petitioner Winselmann also filed his exceptions a day late. The language of the rule is specific, clear, and mandatory. I therefore reject the exceptions of Hobdy and Winselmann for failure to comply with this rule.

The exceptions filed by a law firm for Residents were timely but are subject to a motion filed by the Applicant to strike all of the petitioners' exceptions. The motion rests on two grounds, the lack of a transcript and the filing of three sets of exceptions (rather than two) by the petitioners. The lack of a transcript is grounds for rejecting exceptions to findings of fact, but not for striking exceptions to conclusions of law. Since the exceptions for Residents except only to conclusions of law, they cannot be struck on this first ground. As to the exceptions of Hobdy and Winselmann,

this ground for the motion is moot, because their exceptions have been rejected for late filing.

As for the second ground of the motion, the filing of three sets of exceptions, the Applicant has no objection to the filing of exceptions by Hobdy (for himself) or Winselmann (for Residents, the motion alleges) but does object to the additional filing of exceptions for Residents by a law firm that made no previous appearance in this proceeding. I note that Winselmann was not a separate party to this proceeding. He never filed a petition for a hearing in his own name. Instead, he was a member of Residents whom the hearing officer permitted to appear at the hearing "pro se" and who later filed a proposed recommended order noting that he and Petitioner Hobdy had appeared pro se "on behalf of the residents." Petitioner Winselmann filed his exceptions in his own name but wrote them as though representing Residents as a group, referring to "[o]ur property," "[o]ur navigational abilities," "[o]ur recreational values," and "[o]ur canal," repeatedly

speaking for the residents as "we." The record does not show whether the hearing officer ever conducted the inquiry required under rule 221-6.008 to determine the adequacy of the qualifications of Winselmann to represent Petitioner Residents. The recommended order refers to Winselmann's appearance only as "pro se," as though he represented only himself. In the absence of the hearing officer's express approval of Winselmann as a qualified representative of Residents, I must conclude that, whatever his subjective intent might be, Winselmann did not legally represent Residents at the hearing or in filing the exceptions.

I therefore deny the motion to strike the petitioners' exceptions. In passing, I also note that because no "attorney or other qualified representative (approved by the presiding officer)" previously represented Residents, there was no need for the law firm filing the exceptions for Residents to file a prior notice of appearance. Rule 17-103.020(5) requires such a filing only by a "successor or associated attorney or other qualified representative." Rule 17-103.020(4) makes the filing of the first pleading the notice of appearance, in effect, for the first such representative. Accordingly, I must rule on Residents' exceptions to the conclusions of law.

Those exceptions focus on the issue whether the hearing officer erred by recommending an award of attorney's fees against the petitioners. Residents asserts that the hearing officer used the wrong standard in reaching that recommendation. Urging that the correct standard is participation in the proceeding "for an improper purpose," under section 120.59(6) of the Florida Statutes, Residents objects to the hearing officer's reliance on the language in section 57.105 of the Florida Statutes that makes the lack of a justiciable issue of law or fact the basis for an award of attorney's fees. Residents argues that the record evinces at most incompetent representation, rather than any improper purpose, that its members believed in good faith that the project would affect navigation, and that this question of the project's impact on navigation was a justiciable issue of fact, even if the applicable standard for an award of fees is the absence of such an issue of fact or law.

Respondent Dolphins Plus has responded to this set of exceptions. The response equates the standard of frivolous participation with that of the lack of any justiciable issue of law or fact, asserts that impact on navigation was not an issue because no evidence was ever presented tending to prove such an impact, and summarizes events at the hearing, including the hearing officer's patient attempts to explain procedural rules and otherwise guide the petitioners. In the absence of a transcript, of course, such a

summary of the hearing is simply outside the record before me, and I cannot consider it.

The question of the appropriate standard for an award of attorney's fees under section 120.59(6) is not difficult. The statute makes such an award depend on the nonprevailing party's participation in the proceeding for an improper purpose. Section 120.59(6)(b), Florida Statutes (1989). The statutory definition of "improper purpose" lists four meanings, including "frivolous purpose." This phrase employs words of plain meaning, requiring no special rules of statutory construction to resolve an ambiguity.

Although the entry for "frivolous" in Webster's New Collegiate Dictionary includes the subjective definitions "lacking in seriousness: irresponsibly self-indulgent," and "marked by unbecoming levity," the settled meaning of "frivolous" in the law is the third definition given, that "of little weight or importance." See Webster's New Colleciate Dictionary 461 (1977 ed.); Black's Law Dictionary 601 (5th ed. 1979); cf. Myers v. Hawkins,

362 So.2d 926, 930 (Fla. 1978) (to determine plain meaning of constitutional provision, court begins with dictionary definitions but ultimately chooses meaning for each "term in light of the primary purpose for which it has been adopted"). This third definition is the meaning that the court accepted for "frivolous" in Mercedes Lighting & Electrical Supply, Inc. v. State Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990), construing section 120.59(6) of the Florida Statutes. Indeed, numerous cases in Florida have used interchangably the terms "frivolous" and "lacking any justiciable issue of law or fact." See, e.q., Marexcelso Compania Naviera,

S.A. v. Florida National Bank, 533 So.2d 805, 805 (Fla. 4th DCA 1988); Schwartz

v. W-K Partners, 530 So.2d 456, 457 (Fla. 5th DCA 1988). Thus, the hearing officer did not err by equating frivolousness with a lack of any justiciable issue of law or fact.

Yet these same cases and others clarify that the frivolousness

that will justify an award of fees must mark the claim from its inception. A court will not award fees against a litigant whose initial (or amended) claim was nonfrivolous, "even though at some point in the course of litigation

it becomes apparent that there no longer remains any justiciable issue of law or fact." Id.; see also State Department of Health & Rehabilitative Services v. Thompson, 552 So.2d 318, 319 (Fla. 2d DCA 1989); Marexcelso, 533

So.2d at 805; Schatz v. Wenaas, 510 So.2d 1125, 1126 (Fla. 2d DCA 1987).

Thus, the crux of the issue is not solely whether the petitioners failed to present any evidence at the hearing so as to show any justiciable issue of law or fact, but whether such failure was accompanied by a failure to raise such an issue in the first place.

Despite the hearing officer's "finding" here that "there was a complete absence of a justiciable issue of law or fact," the question of justiciability is one of law, and the purported finding is really a conclusion of law. Under section 120.57(1)(b)10 of the Florida Statutes, I may reject or modify such a conclusion. Having reviewed the two petitions and the photographs attached to the petition for Residents, I must conclude that, however unartfully, both petitions raised at least one justiciable issue of fact, concerning the putative effect of the project on

navigation, under section 403.918(2) of the Florida Statutes. In pertinent part, the petition for Residents alleges that the fence would "severely impact [the petitioner residents') use of the canal" because its removal of part of "the canal turning basin" would restrict them to using only "small boats which can turn around within the canal itself." Petition of Residents para. 3. Although it is true that "navigation" as used in section 403.918(2)

"is primarily associated with the use of publicly used shipping lanes or channels," Clarke v. Melton, 12 F.A.L.R. 4946, 4952 (Fla. DER 1990), the Department does consider the impacts of small structures such as docks on the navigability of small boats, in weighing the impact on navigation of projects under section 403.918(2). See Riverside Club Condominium Association, Inc. v. Adventure Construction & Canvas, Inc., 9 F.A.L.R. 6207 (Fla. DER 1987); Ryan v. Spang, 8 F.A.L.R. 4288 (Fla. DER 1986). The petition for Hobdy raises this same issue, though described only as an effect on Hobdy's own use of his boat. In addition, Hobdy's petition questions whether the housing of large mammals in the stranding pen would adversely affect water quality in the canal. These two questions are "not so free of doubt as to render [each] . . . claim frivolous," for purposes of awarding a fee. See Scott v. Durlinc, 471 So.2d 658, 659 (Fla. 2d DCA (1985).

Under Schwartz and other cases cited above, the failure of Residents to support this allegation at the hearing, at least on the basis of the record before me, does not warrant an award of fees. Reinforcing this conclusion is an earlier ruling of the hearing officer that excluded evidence on this very issue. His order granting the motion to limit issues eliminated the question of impact on navigation before the hearing. His ruling therefore may have contributed to the failure of these petitioners, obviously not expert

in administrative procedure, to present competent substantial evidence at the the hearing. Cf. Harbor Estates v. State Department of Environmental Regulation, 12 F.A.L.R. 2392 (Fla. DER 1990) (failure of hearing officer to issue subpoenas contributed to failure of petitioners to produce witnesses at hearing and undercut recommendation to award fees). At the same time, neither of the respondents ever sought to strike the petitions as being filed for an improper purpose (because allegedly lacking any justiciable issue), and the hearing officer never ordered the dismissal of either of the petitions on such basis. For "the orderly conduct of

proceedings," the court in Mercedes Lichting suggested such an order "at the earliest stage at which a violation of the statute can be determined," for an award of fees under section 120.57(1)(b)5 (providing for awards of fees for filing any pleading or other paper for an improper purpose). See Mercedes Lighting 560 So.2d at 279. There is no reason not to apply the same general principle to awards under section 120.59(6). Cf. Harvey v. Trans Pac, Inc., 12 F.A.L.R. 4378, 4379 (Fla. DER 1990) (reading the two statutes together in light of this guidance from the court in Mercedes Lighting. That this matter went to hearing without such a motion or order leads me to conclude that the parties and the hearing officer at first thought that one or more of the issues raised in the petitions were justiciable.

Despite the apparent ineptness of the petitioners' representation here, there is no direct evidence of improper purpose for the participation of the petitioners. The hearing officer emphasized the petitioners' failure to understand "the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence." Recommended Order at 15. Petitioners attempted to present evidence at the hearing, including the testimony of witnesses, but the hearing officer found none of the evidence relevant or material. The Florida Administrative Procedure Act liberally expands public access to agency action, taking the risk that lay representation will not always be effective. See The Florida Bar v. Moses,

380 So.2d 412, 415 (Fla. 1980). Although section 120.59(6) sets a limit on such access, it is far from clear that mere ignorance or ineffective representation is tantamount to participation for an improper purpose. See Harvey, 12 F.A.L.R. at 4379-80. In this context, and in the absence of direct evidence of an improper purpose, I am reluctant to make "the legal

inference that would supply the connection between acts demonstrating incompetent representation by a party's lay representative and a finding of participation by that party for an improper purpose within the meaning of Section 120.59(6), Florida Statutes." See Harbor Estates, 12 F.A.L.R. at 2398. In accordance with section 120.57(1)(b)10 of the Florida Statutes, I accept the hearing officer's findings of fact in this matter, except for the conclusion of law (mislabeled a finding) that there was no justiciable issue of law or fact. For all the reasons given above, I reject that conclusion and the recommendation of an award of fees and costs to Respondent Dolphins Plus. As for the motion by Petitioner Hobdy for attorney's fees costs, on the ground that the attorney for Dolphins Plus presented a frivolous case and filed a frivolous motion for attorney's fees, Dolphins Plus is the prevailing party in these proceedings. Its case was not frivolous. Although it did not prevail in moving for fees and costs, its motion for such fees was not frivolous. The hearing officer

recommended an award of such fees, and the issue merited serious consideration in this final order. The motion by Hobdy for fees is without merit.

MISCELLANEOUS SUPPLEMENTARY RULINGS

On two occasions, October 7 and October 8, 1991, the Department received correspondence from Petitioner Winselmann purporting to offer further argument in regard to the issues before me. These ex parte communications have been disregarded in the preparation of this Final Order, and to the extent they could be viewed as unauthorized further exceptions or responses to exceptions, they are sua sponte stricken.

CONCLUSION

Having ruled on all the exceptions, it is ORDERED that

1. Except as otherwise stated in this Final Order, the hearing officer's recommended order is adopted and incorporated here by reference.

   
   

2. The motion by Respondent Dolphins Plus to strike exceptions is denied.

   
   

3. The opposing motions for attorney's fees and costs are denied.

   
   

4. The petitions protesting the issuance of Permit No. 441808385 to the Applicant are denied.

   
   

5. The Department shall issue Permit No. 441808385 to Respondent Dolphin Plus.

NOTICE OF RIGHTS

Any party to this final order has the right to seek judicial review of this order under Section 120.68 of the Florida Statutes by filing a notice of appeal under rule 9.110 of the 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 filed within thirty days from the date when this order is filed with the Clerk of the Department.

DONE AND ORDERED on this 8 day of October 1991 in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

Carol M. Browner Secretary

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

Telephone: (904) 488-4805

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing order was mailed to the Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; Daniel Manry, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; Donna E. Albert, Esq., Fertig and Gramling, 750 S.E. Third Avenue, Suite 200, Fort Lauderdale, Florida 33316; Candi Culbreath, Assistant General Counsel, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; Clarence Hobdy, 105 Ocean Shores Drive, Key Largo, Florida 33037; Kurt Winselmann, 135 Ocean Shores Drive, Key Largo, Florida 33040; and Andrew M. Tobin, Esq., Mattson and Tobin, P.O. Box 586, Key Largo, Florida 33037, on this 9 day of October 1991.

Timothy A. Smith Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 91-000252

Orders for Case No: 91-000252