STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIONAL PARK SERVICE, )

)

Petitioner, )

)

vs. ) CASE No. 92-1402

)

JAMES R. LANGFORD and )

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on August 17, 1992 in Bradenton, Florida, before William R. Cave a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Partricia Cortelyou-Hamilton, Esquire

U.S. Department of the Interior National Park Service

SE Regional Office

75 Spring Street SW Atlanta, GA 30303

For Respondent: No Appearance James R. Langford

For Respondent: Francine M. Ffolkes, Esquire Department of 2600 Blair Stone Road Environmental Tallahassee, FL 32399-2400 Regulation

STATEMENT OF THE ISSUES

Whether a permit (DER File #411890893) should be issued to James R. Langford in accordance with the Notice of Intent filed herein.

PRELIMINARY STATEMENT

On November 11, 1991, the Department of Environmental Regulation (Department), issued an Intent To Issue a permit (DER File #411890893) to Respondent, James R. Langford for a proposed dock which consists of an access pier 405 feet by 4 feet with a terminus 25 feet by 10 feet located within the Manatee River, a Class III, Outstanding Florida Waterbody, not in an aquatic preserve, in Section 13, Township 34 South, Range 16 East, near Lot 30, Riverview Landings, 84th Street Circle N.W., Manatee County, Florida.

A timely Petition for Hearing protesting the Intent to Issue permit (DER File #411890893) was filed by the U.S. Department of Interior on behalf of the National Park Service. On February 28, 1992 the Department transferred the matter to the Division of Administrative Hearings for the assignment of a hearing officer and to conduct a formal proceeding in this matter.

This matter was initially scheduled for hearing on July 7, 1992 in Bradenton, Florida, but continued and rescheduled for August 17, 1992 by Order dated June 24, 1992 on the Petitioner's Motion For Continuance. A Motion for Continuance was filed by the Department on August 11, 1992 but was denied for lack of good cause, and the matter proceeded to hearing on August 17, 1992.

There was no oral or documentary evidence offered at the hearing, and no transcript was filed with the Division of Adinistrative Hearings.

FINDINGS OF FACT

1. In addition to the Department and the National Park Service, a copy of the Initial Order was mailed to: James R. Langford, 6008 Shore Acres Drive, N.W., Bradenton, Florida; and James R. Langford, c/o Benson Engineering, Inc.,

   311 67th Street West, Bradenton, Florida 34209.

   
   

2. Benson Engineering, Inc., was agent for James R. Langford in presenting Langford's application to the Department.

   
   

3. All Orders and Notices of Hearings including the Initial Order, mailed to James R. Langford at 6008 Shore Acres Drive, N.W., Bradenton, Florida by the Division of Administrative Hearings were returned by the U.S. Postal Service indicating that the forwarding order had expired.

   
   

4. All attempts by the undersigned, including contacting Benson Engineering, Inc., to contact Langford by telephone were unsucessful.

   
   

5. Benson Engineering, Inc. received Notice of the Hearing. Mr. Benson appeard at the hearing, and advised the undersigned that he was the agent for Langford in presenting Langford's application to the Department. However, there was nothing in the record where Langford had requested that Benson be allowed to act as his Qualified Representative and Benson did not present anything at the hearing. Therefore, Benson was not allowed to act as Langford's Qualified Representative.

   
   

6. Langford did not appear at the hearing, and made no contact with the undersigned, or counsel for the Department or counsel for the National Park Service.

   
   

7. Counsel for both the Respondent and the National Park Service attempted to locate Langford on different occasions but were unsuccessful. Counsel for the Department even contacted the real estate office that was handling the sale of the property subject to the permit application but was also unsuccessful in this attempt.

   
   

8. There was no evidence presented in support of Langford's application for a permit to build the dock in question.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The burden is upon the applicant for a permit to present competent, substantial evidence to establish facts to show the applicant's entitlement to the permit. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (2nd DCA Fla. 1981) Langford has failed to carry this burden by failing to appear and present evidence of his entitlement to the permit.

RECOMMENDATION

Accordingly, upon the foregoing Findings of Fact and Conclusion of Law, it

is,

RECOMMENDED:

That the Department enter a Final Order denying Respondent James R.

Langford's application for permit, DER File Number 411890893.

DONE and ENTERED this 24 day of August, 1992, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 24 day of August, 1992.

COPIES FURNISHED:

Francine M. Ffolkes, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Patricia Cortelyou-Hamilton, Esquire

U.S. Department of the Interior National Park Service

SE Regional Office

75 Spring Street SW Atlanta, Georgia 3030

James R. Langford

6008 Shore Acres Dr NW Bradenton, Florida 34209

James R. Langford

c/o Benson Engneering Co.

311 67th Street W Bradenton, Florida 34209

Carol Browner, Secretary

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

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: 92-001402

Orders for Case No: 92-001402