STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER BROOM and JEREMY R. GEFFEN, )

)

Petitioners, )

)

vs. ) Case No. 99-4418

) TOWN OF INDIAN RIVER SHORES and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, on December 13, 1999, a telephonic conference hearing was held on a Motion to Dismiss filed by Respondent, Town of Indian River Shores, in this case before Susan B. Kirkland, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore W. Herzog, Esquire

1101 Simonton Street

Key West, Florida 33040 For Respondent Town of Indian River Shores:

Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street

Vero Beach, Florida 32960-2469

For Respondent Department of Environmental Protection:

Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether the Notice to Proceed with the work and activities authorized by Amended Permit IR-507 should be issued.

PRELIMINARY STATEMENT

On September 17, 1999, Respondent, Department of Environmental Protection (Department), issued a Notice to Proceed with the activities authorized by Amended Permit Number IR-507.

Petitioners, Peter Broom and Jeremy R. Geffen, filed a Request/Petition for Administrative Hearing. The case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on October 18, 1999.

On November 16, 1999, Respondent, Town of Indian River Shores (Town), filed a Motion to Dismiss. The Motion was heard by telephonic conference on December 13, 1999.

FINDINGS OF FACT

1. On July 24, 1996, Respondent, Town of Indian River Shores (Town), filed an application with Respondent, Department of Environmental Protection (Department), for a permit to construct a beach access ramp seaward of the coastal construction control line. By Final Order dated November 27, 1996, the Department granted Permit Number IR-507. Petitioners,

   Peter Broom and Jeremy R. Geffen, and Duane Jackson, who is not a party to this proceeding, protested the granting of the permit and requested a formal hearing.

2. A formal administrative hearing was held on November 13- 14, 1997, before Administrative Law Judge Errol H. Powell, who issued a Recommended Order on December 8, 1997, recommending that the Department enter a final order granting Permit Number IR-507 with special conditions as may be required by the Department for the protection of marine turtles. Administrative Law Judge Powell concluded the following in Paragraph 49 of the Recommended Order:

   49. The evidence demonstrates that the impact of the proposed beach access ramp is minimal; that the construction or use of the beach access ramp will have no adverse effect on the marine turtle or the turtle nesting; and the beach access ramp will not cause significant adverse impacts or cumulative impacts.

3. On January 13, 1998, the Department entered a Final Order, adopting the Recommended Order of Administrative Law Judge Powell and granting Permit Number IR-507 subject to two additional special conditions recommended by the Department staff during the final hearing pertaining to a survey of turtle nesting areas and restrictions on the use of the Town's ATV vehicle as discussed in Findings of Fact 34 and Conclusion of Law 52 of the Recommended Order, which provided:

   34. At hearing, the DEP made another recommendation for the issuance of the CCCL permit, involving the marine turtle. Prior to the issuance of the Final Order, the DEP was not fully aware that the proposed beach access ramp was to be used for both emergency and routine patrol access. Having considered the circumstance of routine patrol, the DEP further recommends that a survey of turtle

   nesting be conducted after construction, but prior to routine use, on the Town's entire five-mile stretch along the Atlantic Ocean to mark turtle nesting areas for their protection and to place certain restrictions on the use of the ATV vehicle. This recommendation will not prohibit or hinder the construction of the beach access ramp.

   * * *

   52. Additionally, the DEP having considered both emergency and routine patrol access, did not deny the CCCL permit. Only another recommendation to protect marine turtles was made by the DEP, regarding the routine patrol.

   
   

4. On June 16, 1998, a Final Order was issued by the Department, issuing Amended Permit Number IR-507. Among the special conditions of the amended permit was that the Town would conduct a marine turtle nesting survey prior to the utilization of the access ramp.

5. A notice to proceed with the activities authorized by Amended Permit Number IR-507 was issued on September 17, 1999. Petitioners requested an administrative hearing, challenging the notice to proceed. Petitioners allege that the notice to proceed had been issued without adequate demonstration of marine life/turtle nursery protection and that the proposed construction would adversely affect marine and turtle life on the beach.

6. At the hearing on the motion to dismiss, Petitioners conceded that Town had fulfilled all special conditions prerequisite to the issuance of the notice to proceed and that the permit did not require that a survey of turtle nesting be

   done prior to the issuance of the notice to proceed or to the commencement of construction.

   CONCLUSIONS OF LAW

   
   

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

8. Essentially, Petitioners seek to relitigate issues that have previously been litigated in Peter Broom, Jeremy R. Geffen and Duane Jackson v. Town of Indian River Shores and Department of Environmental Protection, DOAH Case No. 97-0294. The issue of whether the beach access ramp will adversely affect marine and turtle life on the beach was determined in that case. A final order was entered finding that with the special conditions there would be no adverse impact to the marine and turtle life. The doctrine of collateral estoppel bars the Petitioners from relitigating those issues in an attack on the Notice to Proceed. Dohen v. Grove Isle, LTD., 442 So. 2d 966, 975 (Fla. 1st DCA 1983).

9. Petitioners have conceded that the Town has complied with all conditions prerequisite to the issuance of the Notice to Proceed. Petitioners are seeking to impose conditions in addition to those required by the permit, which is impermissible.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED

That a final order be entered dismissing the Request/Petition for Administrative Hearing.

DONE AND ENTERED this 7th day of January, 2000, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 7th day of January, 2000.

COPIES FURNISHED:

Kathy Carter, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Thomas I. Mayton, Jr., Esquire Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Theodore W. Herzog, Esquire 1101 Simonton Street

Key West, Florida 33040

Michael R. Dombroski

Coastal Technology Corporation 3625 20th Street

Vero Beach, Florida 32960

Chester Clem, Esquire Clem, Polackwich & Vocelle 3333 20th Street

Vero Beach, Florida 32960-2469

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.

Docket for Case No: 99-004418

Orders for Case No: 99-004418