STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WALLACE CORPORATION, )
)
Petitioner, )
)
vs. ) Case No. 98-2031
)
CITY OF MIAMI BEACH and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on August 11, 12, and 14, 1998, at Miami, Florida (as to the first two days), and by video teleconference (as to the last day), before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Neil Chonin, Esquire
Chonin, Sher & Navarette, P.A.
95 Merrick Way, Suite 100 Coral Gables, Florida 33134
Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431
For Respondent City of Miami Beach:
Raul J. Aguila, Assistant City Attorney Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33139
Earl G. Gallop, Esquire
Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301
Miami, Florida 33133-4741
For Respondent Department of Environmental Protection:
Ricardo Muratti
Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
Whether the application submitted on behalf of the City of Miami Beach, Florida (City) for a coastal construction control line (CCCL) permit should be approved.
PRELIMINARY STATEMENT
This case began on March 25, 1998, when the Department of Environmental Protection (DEP or the Department) through its Bureau of Beaches and Coastal Systems issued a proposed order to authorize and approve an application for a CCCL permit submitted on behalf of the City. Such application sought to allow the City to construct a beachwalk seaward of the CCCL. This beachwalk with its meandering path and attendant improvements is opposed by Petitioner, Wallace Corporation.
Petitioner owns and operates a hotel within the City of Miami Beach. Petitioner maintains it will be adversely affected by the proposed construction. According to Petitioner, the beachwalk: is a structure that is not required for the prevention of erosion; will injure Petitioner's business and property; will increase pedestrian traffic along the beach front
of its property which will increase crime and destroy the traditional ambiance enjoyed by its patrons; will damage its business by deterring clientele who seek a more intimate environment; will violate Petitioner's riparian rights of ingress and egress as its right of view will be damaged; and will increase the likelihood of false crawls or impair turtle nesting constituting a "take" under law. Petitioner also asserts that property owners were not given final plans for approval as specified in an authorization submitted to DEP.
The case was forwarded to the Division of Administrative Hearings for formal hearings on May 1, 1998. Thereafter, an order was entered which limited the issues for hearing. Such order provided, in pertinent part:
As to the Motion in Limine, Petitioner has stipulated it does not seek monetary damages in this cause. The Division of Administrative Hearings has no jurisdiction over issues of taking and Petitioner may not offer evidence related to "Whether the project will result in a taking of Wallace's property without just compensation?" as set forth in paragraph 3(p) of the petition.
As to Petitioner's assertion that it is entitled to present evidence of damages pursuant to Section 161.201, Florida Statutes, such statute describes common-law rights which survive subsequent to the establishment of an erosion control line. It provides:
Any upland owner or lessee who by operation of ss. 161.141-161.211 ceases to be a holder of title to the mean high-water line shall, nonetheless, continue to be entitled to all common- law riparian rights except as otherwise
provided in s. 161.191(2), including but not limited to rights of ingress, egress, view, boating, bathing, and fishing. In addition the state shall not allow any structure to be erected upon lands created, either naturally or artificially, seaward of any erosion control line fixed in accordance with the provisions of ss. 161.141-161.211, except such structures required for the prevention of erosion. Neither shall such use be permitted by the state as may be injurious to the person, business, or property of the upland owner or lessee; and the several municipalities, counties and special districts are authorized
and directed to enforce this provision
through the exercise of their respective police powers.
Such statute reiterates an upland owner's common-law riparian rights of ingress, egress, view, boating, bathing, and fishing. Such rights may not be abrogated by the erection of structures seaward of an owner's property. As contemplated by the statute, structures permitted within such area are to be for the prevention of erosion and may not be injurious to the person, business, or property of the upland owner.
According to the description of the instant project (rendered by Petitioner's counsel), the proposed beachwalk is not seaward of the Petitioner's property. As described by the parties, the proposed walk will end at the south just south of the Petitioner's property and resume from the north just north of the Petitioner's land. The proposed walk will not parallel the Petitioner's access to the beach.
Unless, Petitioner can establish it is an upland owner such that the proposed project is seaward of the erosion control paralleling its property, Section 161.201, Florida Statutes, would be irrelevant and inapplicable to this case.
At hearing, the City presented testimony from Harvey Sasso, P.E., an expert in coastal engineering, whose company was retained by the City as the project manager for the beachwalk project; Richard Lorber, a senior planner employed by the City; Brian Flynn, the coastal programs administrator for the Miami- Dade County Department of Environmental Resources Management; and James Hoover, the Miami-Dade County Beach Operations and Maintenance Supervisor. Twenty-three exhibits were received into evidence in support of the City's case.
Barry Manson-Hing, an engineer employed by the DEP who was accepted as an expert in coastal engineering and regulation; William Wilkinson, the agency's beach lighting specialist; and Karen Moody, a biologist employed in the agency's Bureau of Protected Species Management, testified for the Department. Four DEP exhibits were admitted into evidence.
Petitioner presented testimony from Stephen Leatherman, Ph.D., an expert in environmental coastal sciences; John Fletemeyer, Ph.D.; Paul Lubien, a police sergeant employed by the City's police department; and Allan Herbert, president of the Wallace Corporation. Eleven exhibits were offered and received into evidence for the Petitioner.
At the conclusion of the case, Petitioner entered an ore tenus motion for a recommended order of dismissal and argued that the City had failed to establish a prima facie case as it did not prove the City had authority to request the instant permit to
build on state lands seaward of the ECL. Ruling on such motion was reserved at the time but is hereby denied.
The Transcript of the proceeding was filed on September 29, 1998. The parties were granted leave until October 19, 1998 to file proposed recommended orders. All parties submitted proposed orders which have been fully considered in the preparation of this Amended Recommended Order.
The Recommended Order was entered in this cause on December 10, 1998. Thereafter, the parties filed exceptions to the Recommended Order and the Department entered an Order of
Remand which directed the undersigned to make additional findings pertinent to its assessment of the issues. Such remand provided, in pertinent part:
B. This case is hereby remanded to DOAH for the limited purpose of the ALJ making additional findings and conclusions related to the issue of the applicability of the exception provisions of the second sentence of Section 161.201 to the City's beachwalk project in its entirety. The ALJ is requested to conduct such further administrative proceedings as are deemed necessary and appropriate to accomplish the limited purpose of this remand.
By order entered March 11, 1999, the parties were granted leave until April 2, 1999, to request and to define what, if any, additional administrative proceedings were necessary to address the remand from the agency. No party requested additional proceedings. Consequently, no additional formal proceedings were conducted.
Thereafter, the parties were provided an opportunity to file proposed amended recommended orders. Such proposals were due on or before May 7, 1999, and have been fully considered in the preparation of this Amended Recommended Order.
FINDINGS OF FACT
The Petitioner, Wallace Corporation, owns and operates the Richmond Hotel located at 1757 Collins Avenue, Miami Beach, Florida.
The Richmond Hotel (the Richmond) was built in 1941 by Allan Herbert's grandfather. It has been continuously controlled by Mr. Herbert's family since that time.
The Richmond prides itself on its appeal to upscale international travelers. It seeks to offer unique accommodations, service, and privacy.
The Richmond was recently renovated and restored at a cost of several million dollars. The guest rooms, roof, plumbing, and electrical systems were upgraded while the original Art Deco decor was preserved.
Included in the renovations were improvements to the pool area, landscaping, and a dune walk-over. These renovations sought to appeal to a "boutique" clientele seeking a peaceful and tranquil housing accommodation while enjoying the Miami Beach locale.
The Respondent, City of Miami Beach, is the applicant for the instant CCCL permit. Coastal Systems was retained by the
City to file and procure the subject permit which is identified in this record as CCCL permit no. DA-361.
The CCCL permit application was filed with the Department on June 19, 1997. Since that time it has been modified to address Department concerns.
The Department of Environmental Protection is the state agency charged with the responsibility of reviewing applications for CCCL permits.
In its review of the instant permit, the Department deemed the application complete on February 5, 1998. Thereafter, the Department's Bureau of Beaches and Coastal Systems entered a proposed order to approve CCCL permit no. DA-361. If approved, this permit will allow the construction and improvements sought by the City.
The project proposed by the City will allow for the construction of a beachwalk that would extend from Lummus Park at 14th Lane to an existing boardwalk at 21st Street. This beachwalk, along with its attendant improvements, will allow the public to access the beach at several controlled points along the dune system. Additionally, it will allow pedestrian traffic to move efficiently length-wise along the dune system.
The project concept is to limit the number of points across the dune system that the pedestrian public uses for access to the beach. Further, the beachwalk will offer the public an efficient means of traveling north to south or vice versa without
reverting out to Collins Avenue. Shifting pedestrian traffic away from Collins Avenue should improve traffic conditions in this highly urbanized area.
The design of the beachwalk minimizes impacts to the beach dune system and prevents erosion by keeping pedestrians on the walk and off the dune. The design will act as an erosion preventative measure and should assure minimal adverse impacts to the dune and beach system.
In this regard, it is critical to note that the dune and beach system in this area of Miami Beach are the product of beach renourishment. The beach itself was created in the late 1970s and 1980s by the U.S. Army Corps of Engineers. In order to address the severe erosion that threatened properties along Miami Beach, the Corps stepped in and deposited millions of cubic yards of sand on the beach.
The beach renourishment project expanded the beach from government cut to 32nd Street. It was designed to provide storm protection for upland owners by widening the non-existent beach and by creating a dune system.
The dune was established immediately seaward of the erosion control line (ECL). This ECL had formerly been the mean high water mark for the beach prior to the massive undertaking to deposit sand along the coast.
The newly created dune served as a dike to reduce the impacts which would be expected from a 100-year storm event. In
theory, water generated in such a storm event would be blocked from coming onshore thereby minimizing damage from wave or surf action upland of the ECL.
To enhance the dune's efficiency in this regard, a vegetation program was implemented to address wind and pedestrian erosion to the dune system. This vegetation program will be expanded as explained below if the instant permit is approved.
Currently the dune system is marred by cross-over channels cut by pedestrian traffic through the dune. These pathways provide convenient access to the beach but do so at a cost to the dune's efficiency and security. Because they cut through the dune in an easterly direction, they allow wind and, potentially water in a storm event, to gouge the dune.
The cuts in the dune undermine the efficiency of the erosion control. By installing the beachwalk proposed by the City, the number of cuts across the dune will be minimized. Moreover, they will be designed to trap sand and to promote erosion control.
The areas which have already been gouged will be re- vegetated to deter pedestrian use. The native vegetation planned for this work should promote erosion control and enhance the dune system. The types of vegetation and manner of planting should also deter future unauthorized pedestrian access through the dune.
Subsequent to the beach renourishment program, the beach, along the entire project length, has experienced a natural accretion. This means that natural erosion is not occurring. Natural erosion results from wind, tidal, or other naturally occurring influences.
In contrast, however, are the man-made erosion sources: pedestrian paths, cuts in the dunes which endanger the dune and limit its effectiveness. The danger from these unregulated cuts could potentially undermine the dune and accelerate erosion from natural events.
Dune cross-walks such as proposed by the instant project (and as maintained by the Petitioner) are required for the prevention of erosion. Thus the project in its entirety will prevent erosion.
The proposed project will not adversely impact the beach-dune system. Petitioner presented no evidence to establish a significant impact.
The project creates a net improvement of sand and vegetation to the dune and will restore all dune cuts.
The beachwalk is proposed to follow the shore, parallel to the beach. It is to be constructed of paver blocks and is to accommodate controlled movement of pedestrian traffic and bicyclists. While it could accommodate emergency vehicle traffic such as police or medical rescue, it is not designed for such use on a routine basis.
The beachwalk will improve public access at 17th and 18th Streets. These access points will give the public better availability of parking and public accommodations.
All of the street end dune cross-overs are designed to trap sand and to minimize erosion to the dune. The proposed access points significantly improve the west to east access to the beach.
As currently designed, the beachwalk will not cause wind borne or water borne projectiles during a storm event.
Moreover, the paver block walk is located landward of the dune in most instances. Even this walk has been designed to break apart and result in no increased erosion during a storm event.
The beachwalk will be constructed of paver blocks installed on a crushed shell or rock base. This base should give the path stability under normal use yet give way in a significant storm event. In some areas the height of the dune will be increased by the placement of additional sand fill.
Foundations for improvements proposed along the beachwalk are also designed to give way in a storm event.
Thus, planters or low walls should easily collapse if undermined in a storm event.
All of the improvements seaward of the ECL are minor structures. Most of the project will be located on state lands.
In the instances where the project crosses or touches private property the City recognizes it must secure easements or other appropriate access to construct and maintain improvements.
It is unlikely that the improvements will cause scour. It is also unlikely that the project will accentuate or contribute to storm surge.
As currently proposed, the beachwalk project will have no adverse impact on the dune system. Moreover, the project will create an improvement to the system by adding sand, stabilizing and improving vegetation on the dune, controlling pedestrian access to the beach, and trapping sand.
Prior to 1980 there was no documented turtle nesting on the project area of Miami Beach.
Since that time, and the creation of the beach from renourishment, there has been a marked increase in turtle nesting in the area.
While such nesting is encouraged by the Department, due to the urbanized nature of the area and the intense pedestrian and public use of the beach, all turtle nests located along this beach are relocated to hatcheries. This relocation policy and practice for the area existed before the proposed project was submitted for approval.
The relocation program is managed by Miami-Dade County under a permit issued by the Department. Pursuant to the permit, the County conducts nesting surveys, operates self-release and
restraining hatcheries, documents false crawls, and rescues turtles for relocation.
None of the foregoing activities will change if the instant permit is approved. Given the width of the beach in the subject area of the proposed beachwalk, the limitations on the lighting proposed for the path, and the current restraints employed to deter the public from interfering with turtle nesting, it is unlikely turtle nesting in the subject area will change.
If anything, there is a possibility that nesting may increase. For reasons unknown to the experts, turtle nesting on Miami Beach is greater in the better lit areas of South Beach. More turtles have nested along the better lit area, have had more false crawls, and have resulted in more nest re-locations from the highly commercial area of South Beach than in the darker, more traditional beach of the subject area.
As turtles and hatchlings become disoriented by lights, this documented phenomenon seems contrary to the typical turtle scenario which would have the nesting turtle approach a dark, quiet beach, nest within a limited distance of the rack line (the line of seaweed deposited by tide along the beach), and return to the ocean.
At the area of the Richmond, turtle nests are typically found within 50 feet of the rack line. Turtles nest within a limited distance of this line, rarely more than 100 feet.
Since the beach is several hundred feet wide along the project length, it is unlikely nesting turtles will be deterred by the construction of the path.
Additionally, it is unlikely the lights proposed for the beachwalk will adversely impact turtles. The number, placement, and limitations proposed on the lights will adequately minimize lighting impacts expected from this project.
Given the need for some lighting to address security and safety issues for the public using the beachwalk, given the relocation of all turtle nests on the subject beach, given the project distances and design considerations to be employed for the path, and given the lack of substantial evidence to the contrary, it is found that the proposed project does not constitute a "take" of marine turtles in the project area.
Miami Beach is a very well lit, commercial area. The pockets of dark beach are only dimly lit in comparison to the more pronounced lights from night clubs or other entertainment areas. The lighting plan proposed by the City adequately addresses the potential for impacts to turtles such that the project should not have a significant adverse impact. To further limit impacts, however, construction of the project should not occur during nesting season.
The proposed beachwalk with its attendant improvements does not cross in front of the Richmond. The project stops immediately to the south of Petitioner's property. The project
picks back up immediately to the north of Petitioner's property. The original design of the project was modified in this fashion because Petitioner opposes the construction of the path and its attendant improvements.
Because Petitioner opposes the project, no portion of the beachwalk will impede Petitioner's riparian rights to the beach/ocean. None of the proposed improvements will be constructed seaward of the ECL along Petitioner's property.
All owners of property upon whose land the beachwalk will be constructed, have or will be required to give written consent to the project. Any public entity upon whose land the beachwalk will be constructed, has or will be required to give written consent to the project.
Petitioner expects the beachwalk to damage business at the Richmond. Mr. Herbert believes the damage should be comparable to the events such as the cold winter of 1958, World War II, and, more recently, the murder of foreign visitors. While it is certain the beachwalk has the potential for increasing pedestrian traffic along the beach in front of the Richmond, any damage suggested by Petitioner is too remote or speculative to be of significant consideration.
The construction of the proposed beachwalk will have no adverse impact on the physical condition of Petitioner's property.
The proposed project will not create a significant adverse impact to the property of others.
Petitioner was not required to establish its dune cross-over was required for erosion control. All dune cross- overs allowed by the Department previous to the instant request were not required to establish that they were required for
erosion prevention. All of the existing and proposed cross-overs are seaward of the ECL.
No upland riparian rights will not be adversely affected by the project.
Petitioner's rights as an adjacent property owner to the project will not be adversely affected by the beachwalk.
Petitioner will not be adversely affected from storm impacts as a result of this project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
An applicant for a CCCL permit has the burden of proof to demonstrate its project is entitled to the approval sought. Accordingly, the City must establish it is entitled to the CCCL permit based upon the criteria set forth by statute and rule. See Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 161.053, Florida Statutes, provides criteria for when the Department may authorize construction in coastal locations. The applicant has demonstrated it is entitled to the instant permit based upon such criteria. Moreover, the applicant has provided sufficient information pertaining to the proposed project to show that any impacts associated with the construction have been minimized and the construction will not result in a significant adverse impact to the beach and dune system as contemplated by the rules found in Chapter 62B-33, Florida Administrative Code.
Petitioner asserts it has standing to challenge the permit because its substantial interests will be adversely affected by the proposed agency action. Further, Petitioner argues that, pursuant to Section 161.201, Florida Statutes, as an upland owner who will suffer injury to its property and business, it has standing to challenge the beachwalk proposed by the City.
As to the latter assertion, Section 161.201, Florida Statutes, provides:
Any upland owner or lessee who by operation of ss. 161.141-161.211 ceases to be a holder of title to the mean high-water line shall, nonetheless, continue to be entitled to all common-law riparian rights except as otherwise provided in s. 161.191(2), including but not limited to rights of ingress, egress, view, boating, bathing, and fishing. In addition the state shall not allow any structure to be erected upon lands created, either naturally or artificially, seaward of any erosion control line fixed in accordance with the provisions of ss.
161.141-161.211, except such structures
required for the prevention of erosion. Neither shall such use be permitted by the state as may be injurious to the person, business, or property of the upland owner or lessee; and the several municipalities, counties and special districts are authorized and directed to enforce this provision through the exercise of their respective police powers.
In this case, the facts are undisputed. Petitioner's property is adjacent to the proposed beachwalk. It is not upland of the project. The project stops to the south of Petitioner's property and picks back up to the north of Petitioner's property. If the side boundaries of Petitioner's property were extended seaward to the Atlantic Ocean, no portion of the proposed project would fall within the interior of such lines. None of the Petitioner's rights protected by Section 161.201, Florida Statutes, will be adversely affected by the construction of the proposed project.
Section 161.201, Florida Statutes, does not create new rights-of-view which would extend rights-of-vision to the south and north of a property. The statute merely assures that property owners have, subsequent to renourishment, the rights they enjoyed prior to the public expansion of a nonexistent beach. In this regard, the statute recognizes that the upland owner cannot "own" the renourished beach as he once might have claimed. Even so, the public's ability to renourish a beach may not be employed to deny such owner the rights specified by the
statute. In this case, if the permit is approved, Petitioner can and will enjoy all the riparian rights currently available.
As to Petitioner's assertion of this claim as an adjacent upland owner, it is found that Petitioner lacks standing to raise such argument on behalf of its neighbors. First, because no neighbor has authorized it to do so. In fact, no upland owner has opposed the instant project. Second, under the plain language of the statute only upland owners' rights are protected. To take Petitioner's position to its illogical conclusion, any upland owner could challenge proposed activities seaward of the ECL. This approach could subject any dune cross- over (such as Petitioner's) to challenge by any upland owner. If such an approach were valid, any construction seaward of the ECL could be prohibited based upon one objection from any upland property owner regardless of the remoteness of the location or lack of interference to the rights specified by the statute.
Such statutory construction would lead to an illogical and unreasonable result. When the language of a statute is clear and unambiguous, as in the instant proceeding, the plain and ordinary meaning of the statute must be given effect unless to do so would lead to an unreasonable or ridiculous conclusion. See C.W. v.
State, 655 So. 2d 87 (Fla. 1995). Moreover, even when the language is susceptible to more than one interpretation, the construction which would avoid an unreasonable result should be preferred. See Agrico Chemical Co. v. State, 365 So. 2d 759
(Fla. 1st DCA 1978). Accordingly, Petitioner's claims pursuant to Section 161.201, Florida Statutes, must fail.
Assuming arguendo that Petitioner has standing to raise its challenge pursuant to Section 161.201, Florida Statutes, it is concluded that the project in its entirety is required for the prevention of erosion. Pedestrian traffic and unrestricted access to the beach will adversely impact the beach and dune system. The proposal will restrict points of access and limit pedestrian damage to the beach and dune system. As such, all properties along and adjacent to the proposed walk will be enhanced.
As to the balance of Petitioner's assertions, it is concluded the City has established an entitlement to the proposed permit. The project will promote erosion control and should not have a significant adverse impact on the beach and dune system. Such system will be enhanced by the additional placement of sand, the re-vegetation of cuts in the dune and new vegetation to the dune, and the opportunity created to trap additional sand. Further, the lighting and other improvements will not cause damage to the turtle habitat in the area of the project as adequate safeguards have been proposed to assure minimal impacts. As to any potential impacts in a storm event, the design proposed adequately provides for the improvements to collapse and sink if undermined by a storm. No projectiles either from trees or lights should occur if implemented as designed.
Finally, the Petitioner has not demonstrated it will be damaged or suffer some adverse impact as a result of the instant project. The statute and rule criteria applicable to the instant project do not address Petitioner's perceived right to attract a "boutique" clientele. The applicant has substantially complied with the environmental and turtle criteria applicable to this project. The construction of the project will not adversely affect Petitioner's property or business as it relates to those criteria. Petitioner cannot limit the public use of public facilities. That increased public pedestrian traffic on the beach seaward of its property may somehow detract from the atmosphere sought at the Richmond is not encompassed by the criteria applicable to this project. Consequently, the Petitioner has failed to establish it will be adversely affected by the proposed project.
Petitioner failed to show that it will suffer injury in fact which is of sufficient immediacy to entitle it to a section
120.569 hearing, or that it is subject to substantial injury of a type or nature designed to be protected by the provisions of Chapter 161, Florida Statutes.
Further, Petitioner has failed to satisfy the second test that it will suffer a substantial injury of a type or nature designed to be protected by the provisions of Chapter 161, Florida Statutes. The purpose of the design regulations
administered by the Department under Section 161.053, Florida Statutes, is to protect beaches and adjacent dunes:
. . . from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structure, endanger adjacent properties, or interfere with public beach access. Section 161.053(1)(a), Florida Statutes.
Petitioner did not prove that it will suffer any adverse impacts resulting from the construction of the beachwalk project at the time of construction, or later from erosion to the beach and dune, or from scour-induced erosion or missiles during storm events.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order approving CCCL permit no. DA-361 with the conditions as set forth in the proposed agency action order and with additional assurances that construction of the project will not occur during turtle nesting season, and that all property owners over whose land the project will meander provide written approval of, and authorization for, the proposed improvements to their properties.
DONE AND ENTERED this 8th day of June, 1999, in Tallahassee, Leon County, Florida.
J. D. Parrish Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1999.
COPIES FURNISHED:
Neil Chonin, Esquire
Chonin, Sher & Navarrete, P.A.
95 Merrick Way, Suite 100 Coral Gables, Florida 33134
Joseph C. Segor, Esquire 12815 Southwest 112th Court Miami, Florida 33176-4431
Ricardo Muratti
Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Earl G. Gallop, Esquire
Nagin, Gallop, Figueredo, P.A. 3225 Aviation Avenue, Suite 301
Miami, Florida 33133-4741
Raul J. Aguila, Assistant City Attorney Office of the City Attorney
City of Miami Beach
1700 Convention Center Drive Miami Beach, Florida 33139
Kathy Carter, Agency Clerk
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 27, 1999 | Final Order filed. |
| Jun. 17, 1999 | (E. Gallop) Revised Notice of Unavability of Counsel filed. |
| Jun. 15, 1999 | (E. Gallop) Notice of Unavailability of Counsel filed. |
| Jun. 08, 1999 | Amended Recommended Order sent out. CASE CLOSED. Hearing held August 11, 12 and 14, 1999. |
| May 07, 1999 | Department`s Amended Proposed Recommended Order; File Returned from the Department filed. |
| May 07, 1999 | Respondent City of Miami Beach`s Amended Proposed Recommended Order filed. |
| May 05, 1999 | Petitioner, Wallace Corporation`s Amended Proposed Recommended Order Addressing the Remand From the Department of Environmental Protection filed. |
| Apr. 15, 1999 | Notice of Intent to Issue an Amended Recommended Order sent out. (parties are granted leave until 5:00pm, May 7, 1999, to file amended proposed recommended order) |
| Apr. 01, 1999 | (J. Segor) Response to ALJ`s Order Dated March 11, 1999 filed. |
| Mar. 29, 1999 | Respondent City of Miami Beach`s Response to Order on Remand (filed via facsimile). |
| Mar. 11, 1999 | Order on Remand sent out. (CASE REOPENED AS A 1-FILE CASE) |
| Jan. 28, 1999 | Order of Remand filed. |
| Dec. 22, 1998 | City of Miami Beach`s Exceptions to Recommended Order (filed via facsimile). |
| Dec. 10, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 08/11,12, & 14/98. |
| Oct. 20, 1998 | Respondent City of Miami Beach`s Proposed Recommended Order (filed via facsimile). |
| Oct. 19, 1998 | Department`s Proposed Recommended Order filed. |
| Oct. 19, 1998 | (Petitioner) (Proposed) Recommended Order filed. |
| Oct. 01, 1998 | Memorandum to Parties of Record from Judge Parrish (Re: RPO`s due by 10/19/98) sent out. |
| Oct. 01, 1998 | Letter to Judge J.D. Parrish from J. Segor Re: Filing Proposed Recommended filed. |
| Sep. 29, 1998 | Letter to Judge J.D. Parrish from J. Segor (RE: request for extension of time to file PRO) (filed via facsimile). |
| Sep. 29, 1998 | Transcript w/cover letterfiled. |
| Sep. 16, 1998 | (4 Volumes) Transcript filed. |
| Aug. 14, 1998 | CASE STATUS: Hearing Held. |
| Aug. 14, 1998 | (One Box) Exhibits filed. |
| Aug. 11, 1998 | CASE STATUS: Hearing Partially Held, Video Hearing Continued to 8/14/98; 9:00am; Miami & Tallahassee. |
| Aug. 10, 1998 | Order sent out. (a fourth day of video hearing set for 8/14/98; 9:30am; Miami & Tallahassee) |
| Aug. 10, 1998 | Department of Environmental Protection`s Amended Exhibit List (filed via facsimile). |
| Aug. 10, 1998 | City of Miami Beach`s Supplemental Witness List (filed via facsimile). |
| Aug. 10, 1998 | Wallace Corporation`s Pretrial Stipulation filed. |
| Aug. 10, 1998 | Petitioner`s Supplemental List of Exhibits (filed via facsimile). |
| Aug. 07, 1998 | Petitioner`s Supplemental List of Exhibits (filed via facsimile). |
| Aug. 07, 1998 | Department of Environmental Protection`s Exhibit List filed. |
| Aug. 07, 1998 | City of Miami Beach and Department of Environmental Protection Pretrial Stipulation (filed via facsimile). |
| Aug. 07, 1998 | Wallace Corporation`s Pretrial Stipulation; Petitioner`s Supplemental List of Witnesses; Petitioner`s List of Exhibits (filed via facsimile). |
| Aug. 06, 1998 | Petitioner`s Notice of Serving Supplemental Answers to City of Miami Beach`s First Set of Interrogatories filed. |
| Aug. 06, 1998 | Department of Environmental Protection`s Motion Allowing Telephone Testimony (filed via facsimile). |
| Aug. 04, 1998 | (Petitioner) Notice of Reliance on 120.57 (1)(e); Petitioner`s Response to City of Miami Beach`s Motion in Limine (filed via facsimile). |
| Aug. 03, 1998 | (Petitioner) Notice of Taking Deposition filed. |
| Aug. 03, 1998 | Petitioner`s Notice of Serving Answers to City of Miami Beach`s First Set of Interrogatories; Petitioner`s List of Witnesses; Petitioner`s Response to City of Miami Beach`s First Request for Production filed. |
| Aug. 03, 1998 | Petitioner`s Supplemental List of Witnesses filed. |
| Aug. 03, 1998 | City of Miami Beach`s Witness List (filed via facisimile) filed. |
| Aug. 03, 1998 | (Petitioner) Notice of Taking Deposition filed. |
| Jul. 31, 1998 | City of Miami Beach`s Motion in Limine No. 1 Regarding Issues of Business Damages and Constitutional Taking (filed via facsimile). |
| Jul. 29, 1998 | (City of Miami Beach) (2) Notice of Taking Deposition; (2) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 27, 1998 | Petitioner`s Response to City of Miami Beach`s Motion for Protective Order and to Quash Notice of Taking Deposition filed. |
| Jul. 27, 1998 | Petitioner`s Response to City of Miami Beach`s First Request for Admissions to Petitioner filed. |
| Jul. 24, 1998 | City of Miami Beach`s Reply to Response to Motion for Protective Order and to Quash Notice of Taking Deposition (filed via facsimile). |
| Jul. 23, 1998 | Order Denying City of Miami Beach`s Motion for Protective Order and to Quash Notice of Taking Deposition sent out. |
| Jul. 22, 1998 | Petitioner`s Response to City of Miami Beach`s Motion for Protective Order and to Quash Notice of Taking Deposition (filed via facsimile). |
| Jul. 20, 1998 | Department of Environmental Protection`s Response to Petitioner`s Request for Production filed. |
| Jul. 17, 1998 | City of Miami Beach`s Motion for Protective Order and to Quash Notice of Taking Deposition (filed via facsimile). |
| Jul. 17, 1998 | City of Miami Beach`s Motion for Protective Order and to Quash Notice of Taking Deposition (filed via facsimile). |
| Jul. 17, 1998 | (Petitioner) Notice of Taking Deposition Duces Tecum; Subpoena Duces Tecum; Notice of Taking Deposition; Subpoena; Re-Notice of Taking Deposition filed. |
| Jul. 16, 1998 | City of Miami Beach`s Response in Opposition to Supplement to Motion for Continuance (filed via facsimile). |
| Jul. 13, 1998 | Order Denying Motion to Continue and Extending Deadline for the Filing of the Pre-Hearing Stipulation sent out. (pre-hearing stipulation due by 8/7/98) |
| Jul. 10, 1998 | Petitioner`s Supplement to Motion for Continuance of Final Hearing (filed via facsimile). |
| Jul. 08, 1998 | City of Miami Beach`s Response in Opposition to Motion for Continuance (filed via facsimile). |
| Jul. 06, 1998 | City of Miami Beach`s Service of Answers to First Set of Interrogatories; Notice of Service of City of Miami Beach`s First Set of Interrogatories to Petitioner filed. |
| Jul. 06, 1998 | (Petitioner) Motion for Continuance of Final Hearing filed. |
| Jul. 01, 1998 | (City of Miami Beach) Response to Subpoena Duces Tecum Served Upon Coastal Systems International, Inc. filed. |
| Jun. 25, 1998 | Department of Environmental Protection`s Response to Petitioner`s Request for Admissions filed. |
| Jun. 22, 1998 | (Petitioner) Request for Production to the State of Florida Department of Environmental Protection filed. |
| Jun. 19, 1998 | (Petitioner) (3) Notice of Taking Deposition filed. |
| Jun. 12, 1998 | (Petitioner) Notice of Taking Deposition filed. |
| Jun. 11, 1998 | (Petitioner) Notice of Production From Non-Party; Subpoena Duces Tecum filed. |
| Jun. 04, 1998 | (N. Chonin) Subpoena Duces Tecum filed. |
| Jun. 01, 1998 | (Petitioner) Request for Production to the City of Miami Beach filed. |
| Jun. 01, 1998 | (Petitioner) Request for Admissions to State of Florida Department of Environmental Protection; Request for Admissions to City of Miami Beach; Notice of Service of First Set of Interrogatories to City of Miami Beach filed. |
| May 28, 1998 | Notice of Hearing sent out. (hearing set for 8/11-13/98; 9:00am; Miami) |
| May 28, 1998 | Prehearing Order sent out. |
| May 26, 1998 | Petitioner, Wallace Corporation`s, Response to Motion to Expedite Hearing (filed via facsimile). |
| May 21, 1998 | City of Miami Beach`s Partial Objection to Joint Response to Initial Order and Motion to Expedite Final Hearing (filed via facsimile). |
| May 20, 1998 | Joint Response to Initial Order filed. |
| May 06, 1998 | Initial Order issued. |
| May 01, 1998 | Agency Action Letter; Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 22, 1999 | Agency Final Order | |
| Jun. 08, 1999 | Recommended Order | Amended Recommended Order entered to provide additional findings required by remand from agency. Entire project is required for erosion prevention. |
| Jan. 22, 1999 | Remanded from the Agency | |
| Dec. 10, 1998 | Recommended Order | Applicant for Coastal Construction Control Line (CCCL) permit demonstrated substantial compliance with criteria and challenging property owner failed to prove damages within statute. None of the proposed improvements is seaward of Petitioner`s property. |
