STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE BRIDGE TENDER INN, INC., ) and FRED BARTIZAL, AS PRESIDENT ) OF THE BRIDGE TENDER INN, )
)
Petitioners, )
)
vs. )
) HARRY BROWN, DAVID TEITELBAUM, ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
Case No. 04-0212
)
RECOMMENDED ORDER
Notice was given, and on March 16, 2004, a final hearing was held in this case. Pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes, Charles A. Stampelos, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Bradenton, Florida.
APPEARANCES
For The Bridge Tender Inn, Inc., and Fred Bartizal:
James A. Harrison, Esquire
Porges, Hamlin, Knowles & Prouty, P.A. Post Office Box 9320
Bradenton, Florida 34206-9998
Mark A. Nelson, Esquire Ozark, Perron & Nelson, P.A. 2808 Manatee Avenue, West Bradenton, Florida 34205
For the Department of Environmental Protection:
Nona R. Schaffner, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 For Harry Brown and David Teitelbaum:
L. Norman Vaughan-Birch, Esquire Jackson C. Kracht, Esquire
Kirk Pinkerton, P.A. 720 South Orange Avenue Post Office Box 3798 Sarasota, Florida 34230
STATEMENT OF THE ISSUES
The issues for determination are whether the dock modification approved by the Department of Environmental Protection (DEP), Permit No. 41-01935093-001, adversely affects the public health, safety, or welfare or property of others and navigation. § 373.414(1)(a) 1. and 3., Fla. Stat.
PRELIMINARY STATEMENT
On June 3, 2002, DEP issued a Consolidated Environmental Resource Permit No. 41-01935093-001 to Harry Brown and David Teitelbaum (collectively Brown), in care of Teitelbaum Development Company, for the construction and expansion of an existing multi-slip docking facility located in Bradenton Beach,
Florida. Notice of DEP’s action was published on June 26, 2003, in the legal ad section of the Sarasota Herald-Tribune.
On or about December 1, 2003, Petitioners, The Bridge Tender Inn, Inc. and Fred Bartizal (Bartizal), as president of The Bridge Tender Inn, Inc. (Petitioners), filed an Amended Petition for Administrative Hearing (Amended Petition) with DEP. On January 15, 2004, DEP referred the matter to the Division of Administrative Hearings (DOAH) and requested the assignment of an administrative law judge to conduct all proceedings required by law and to submit a recommended order to DEP.
On January 29, 2004, Brown filed an amended motion to dismiss Petitioners' Amended Petition. On March 1, 2004, Administrative Law Judge J. Lawrence Johnston denied the amended motion to dismiss. On March 11, 2004, the case was transferred to the undersigned to conduct further proceedings.
Brown submitted a Pre-Hearing Statement on or about March 8, 2004. On March 9, 2004, Petitioners filed a Pre-Hearing Statement. On March 10, 2004, DEP filed a Pre-Hearing Statement.
The final hearing was held on March 16, 2004, in Bradenton, Florida. DEP presented the testimony of Theodore Michael Murray, an Environmental Manager in the Environmental Resource Management Program with DEP and an expert in environmental
resource procedures. DEP Exhibits 1 through 8 were admitted into evidence.
Respondents, Harry Brown and David Teitelbaum, called Melvin Rector, an environmental consultant, as an expert witness; Mark Claire, a middle school teacher and holder of a boat Captain’s license and owner of a boating services company, as an expert witness; and Jeffrey L. Hostetler, a Florida licensed Professional Surveyor and Mapper (P.S.M.) as an expert rebuttal witness.
Petitioners called the following witnesses: Dr. Fred Bartizal, a medical doctor; Raymond M. McClarney, president of McClarney, Inc.; John Maschino, general manager of The Bridge Tender Inn; Darrell Konecy, a licensed boat Captain, an expert witness; and Mike C. Greig, a licensed boat Captain, an expert witness. Petitioners’ Exhibits A, D, I, J, and K were admitted into evidence.
Brown and Petitioners’ Joint Exhibits 1 through 24 were admitted into evidence. Petitioners’ Exhibits I and J were also designated as Joint Exhibits. (Tr. 42-44.)
Volumes A and B of the Transcript of the final hearing were filed with DOAH on April 12, 2004. On May 6, 2004, Petitioners filed a Proposed Recommended Order (PRO). On May 11, 2004, Brown filed a Proposed Recommended Order. On May 12, 2004, DEP filed a Proposed Recommended Order.
On May 18, 2004, Brown filed a letter, which was sent to DEP’s counsel and Petitioners’ counsel, objecting to a portion of DEP’s PRO. On May 19, 2004, Brown filed a letter, written to the undersigned, and enclosed a copy of the May 18, 2004, letter. On May 19, 2004, DEP responded to the May 18, 2004, Brown letter.
All post-hearing PROs have been considered in the preparation of this Recommended Order. See Endnote 3.
FINDINGS OF FACT
The Parties
The Bridge Tender Inn (Inn) is a restaurant and a Green Bay Packer bar located at 135 Bridge Street, Bradenton, Florida. Dr. Fred Bartizal is a medical doctor and the president of the Bridge Tender Inn, Inc. and the owner of the Inn. Petitioners are adjacent landowners who object to the proposed permit issued to Brown. The general public uses the Inn’s two existing docks. (The southernmost dock is adjacent to the Brown dock that is the subject of this proceeding.) Petitioners are in the process of obtaining a submerged land lease (from DEP) for the southern dock. Petitioners are substantially affected persons.
DEP has the statutory authority to issue Environmental Resource Permits (ERP) for the construction of docks such as the modification proposed by Brown.
Respondent, Harry K. Brown (Brown), owns the property at Section 4, Township 35 South, Range 16 East, Manatee County Florida.1 The property is located in and on Anna Maria Sound off of Bay Drive South, between Third and Fourth Streets South, in Bradenton Beach, Florida. Brown owns the property upland to the proposed dock extension. See Endnote 1. The existing dock, as proposed for modification, is located in Sarasota Bay, a Class II Outstanding Florida Water. See Fla. Admin. Code
R. 62-302.400(12)(b)41. The Gulf of Mexico is west of Anna Maria Sound and Sarasota Bay.
Brown’s Original Application for Permit Authorization to Construct a Dock
In 1994, Brown filed an application with the Army Corps of Engineers (Corps) for a permit “to perform work in and affecting navigable waters of the United States.” On
December 19, 1994, the Corps authorized Brown “to construct a T-shaped dock with four boat slips (one covered) in Anna Maria Sound” at the above-described property, in accordance with the “drawings and conditions which are incorporated in, and made a part of, the permit.”
There are two drawings attached to the Corps permit.
Joint Exhibit 4. The first shows the proposed Brown T-shaped dock with four identified boat slips, two on the south and two on the north sides of the portion of the dock running
perpendicular to the shore. The approach to the “T” portion of the proposed dock extended 120 feet waterward (to the east.) The described “T” end of the dock measured 10’x60’. The proposed covered slip was adjacent to the northern portion of the “T,” with a boat slip adjacent to the west. (There are also two mooring pilings shown on the north side that indicate the boundaries of the covered and uncovered boat slips.) Joint Exhibit 4.
This drawing also shows part of the existing and adjacent boat dock to the north of the Brown dock that runs perpendicular to the shoreline and has a T-shape at the end, running in a north and south direction. The drawing indicates that the southeastern portion of the dock to the north is “20’” from the mooring piling that forms the western boundary for the covered boat slip. Based on the “20’” designation, it appears that the second mooring piling to the west is also shown approximately 20 feet from the southeastern portion of the other boat dock. (Part of the explanation portion of this drawing was not copied.)
Another, hand-drawn drawing (identified as “Exhibit 1 D,” dated April 25, 1995, prepared by Florida
Permitting, Inc., and stating “REVISED APPLICATION”) shows the location of the two docks. The distance between the southeastern corner of the northern boat dock (the Bartizal
dock) and the eastern mooring piling (on the north side of the Brown dock and the western boundary for the covered boat slip (slip 1)) is shown as approximately “40’.” There is no measurement shown for the distance between the southeastern corner of the Bartizal boat dock and the western mooring piling for slip 2 on the north side of the Brown dock. The distance appears to be less than 40 feet but more than 35 feet from the southeast corner of the Bartizal “T” shaped dock.
On September 14, 1994, Brown also filed an application with DEP to construct a dock with four slips. (Fred Bartizal and Barbara Lohn are listed as adjacent property owners.) The Brown project was “revised to ensure adequate water depths and minimal impacts, and to maintain reasonable access to both the proposed dock and the existing dock to the north” as reflected in three drawings (Sheets A-C-dated April 25, 1995, and prepared by Florida Permitting, Inc.) that are a part of the application. Joint Exhibit 5. (Sheet C is the same as “Exhibit 1 D,” described in Finding of Fact 7. See also DEP Exhibit 7, Sheet A.) The three sheets are similar and provide the same locations for the proposed Brown and built Bartizal docks, including the “40’” measurement. Also, as revised, the approach to the Brown dock “T” is shown to be 130 feet long and the “T-end” of the dock is reduced by 12 feet, for a total length of 48 feet, and the width reduced from 10 to 8 feet, or 48’x 8’.
On August 8, 1995, DEP issued Permit No. 412576623 authorizing the construction of a four slip private docking facility consisting of 904 square feet, with a conservation easement granted to DEP. Brown was required to submit “as- built” drawings to DEP within 30 days of completion of the authorized work. “Record drawings shall include the controlling elevations of all permitted structures, including final elevations as shown in the permit drawing(s)” in the “Plan View” “Sheet A,” which shows the “40’” measurement.
Based on the weight of the evidence, “Sheet A” depicts the 1995 DEP approved location of the Brown dock. See DEP Exhibit 7, stamped approved by DEP, August 8, 1995, and Joint Exhibit 5, Sheet A. 2
It appears that the original Brown dock, as revised and approved by DEP Permit No. 412576623 in 1995, was actually constructed such that there is 33.4 feet between the northwestern corner of the Brown “T” portion facing north, and the southern portion of the adjacent Bartizal dock, rather than approximately 43 feet. Compare Joint Exhibits 1, 20, and 23 and Petitioners’ Exhibit J with Joint Exhibit 5, Sheet A and DEP Exhibit 7, which are the same document. See Finding of Fact 24. The mooring piling on the west side of slip 1, as depicted on DEP Exhibit 7, was constructed approximately 27 to 30 feet from the southeastern corner of the Bartizal dock (not approximately
40 feet as shown on DEP Exhibit 7) and the second mooring piling to the west was approximately 25 to 28 feet from the southeastern corner of the Bartizal dock. These are rough approximations.
The ultimate finding is that the two western mooring pilings on the north side of the Brown dock and the main walkway of the Brown dock were originally constructed closer to the Bartizal dock than authorized by DEP in 1995.3
The 2002 Application Requesting Approval for Modification of the Existing Dock
On or about January 3, 2002, Sherri Neff, Environmental Specialist with Florida Permitting, Inc., and Melvin Rector, president of Florida Permitting, Inc., on behalf of Brown, filed an application with DEP requesting approval of an Environmental Resource Permit for a modification of the dock previously authorized pursuant to Permit No. 412576623. Bartizal and Gregory Ellis Watkins are listed as adjoining property owners. The dock modification requested the replacement and extension of an existing structure to accommodate the dockage of 11 boats. DEP Exhibit 1.
The “Project Narrative” included with this application stated in part:
The egress to the proposed recreational pier currently falls along the 187' shoreline located along Bay Drive South. Access to the structure is provided by an easement from the City of Bradenton Beach. If
permitted, the egress associated with the modified structure will remain at the current length of 121' beyond the jurisdiction line. The northern extension of the existing T-shaped structure, currently measured at 9.9' by 21.5', will be eliminated, and the southern extension will be reduced in width to six foot with a 28' length. In addition, an L-shaped extension is proposed to extend beyond the existing pier linearly approximately 27' into Sarasota Bay while maintaining four-foot width. A 43' by two-foot perpendicular arm would extend north at the terminus of this structure.
Eleven mooring slips of specified size (Table l) are proposed in areas of suitable water depth around the structure. The modified pier would encompass an estimated 846 square feet, a reduction of 58 square feet, in relation to the originally permitted 904 square foot structure (the existing structure measures approximately 965 square feet).
The application included, among other documents, a plan view of the dock modification and a cross section; a summary of structures over wetlands and other surface waters; an aerial of the area; a photograph of the existing Brown T-shaped dock and the two mooring pilings and part of the Bartizal dock to the north, including the two mooring pilings on the south side of the Bartizal dock, see also DEP Exhibit 8 and Joint Exhibit 20; water depth data; and a document showing the proposed structure and the location of the local channel. See
also DEP Exhibits 2 and 4.
In part, Brown granted DEP a perpetual conservation easement for 0.12 (submerged) acres as shown on an attached survey which is a rectangular area south of the Brown dock, running parallel to the shoreline and Bay Drive South.
See Joint Exhibit 3, diagram identified as P 16 and DEP Exhibit 6. This diagram also shows what purports to be the
pre-existing Brown T-shaped dock, the portion on the south side that is to be removed, and the location of the proposed addition, with the main portion of the dock extending east of the existing “T” and to the north. The location of the 11 boat slips is shown with the mooring pilings. Bartizal’s dock is not shown on this diagram, although it is shown on an aerial of the area dated March 1, 2002, DEP Exhibit 3.
DEP employee George Molinaro reviewed the Brown modification and recommended approval. He no longer works for DEP and did not testify.
On June 2, 2002, DEP issued Environmental Resource Permit, DEP Project No.: 41-01935093-001 for the construction of a 846 square foot multi-slip docking facility that would accommodate the mooring of 11 vessels. The approved dock configuration was: “a 4 ft. x 121 ft. access walkway (484 sq. ft.), a 28 ft. x 6 ft. southern extension (168 sq. ft.), a 4 ft. x 27 ft. extension (108 sq. ft.) and the 2 ft. x 43 ft. northern finger pier (86 sq. ft.).”
The Challenge to the Modification
An Amended Petition was filed on behalf of Petitioners. See Finding of Fact 1. The southern Bartizal dock extends out from the upland property, and is north of the Brown
dock. The Bartizal dock is a four-foot wide dock that extends east into the water approximately 95 feet. There is a “T” extension at the easterly portion of the dock that extends to the north and south. There are two mooring piles that are west of the southern portion of the “T” extension. See Joint Exhibits 1 and 23; DEP Exhibit 8; and Petitioners’ Exhibit J.
Boaters have moored their boats at the southern Bartizal dock, which has two southern slips for purposes of docking. In this manner, these patrons can access the Inn. Bartizal contends that boaters will be reluctant to use these slips because they are too close to the Brown mooring pilings as built.
Prior to the completion of the Brown modification requested in 2002, i.e., when the Brown dock had a “T” portion, depending on the tidal currents, Bartizal and others would travel south, hugging the eastern portion of the Brown “T” following an unmarked portion of the waterway. In this manner, he and other boaters could access the inter-coastal waterway leading to the Gulf of Mexico. See Joint Exhibit 2. Now, Bartizal contends that he and an uncertain number of others are unable to travel in this manner because of the eastward extension of the Brown dock and mooring pilings and the depth of the water in this location. Id.
Resolution of the Controversy
One issue to be resolved is the distance between the Bartizal dock and the westerly mooring pilings north of the Brown dock and whether the placement of the Brown mooring pilings (and boats using these slips) interferes with and is potentially hazardous to boats that enter and exit from the southern portion of the Bartizal dock and boats moored at the Brown dock. See Endnote 3.
The other issue to be resolved is whether the modification and extension of the Brown dock adversely affects navigation.
There is no “as built” survey of the originally permitted and constructed Brown dock. However, there is a “sketch”4 drawn by Jeffrey L. Hostetler, P.S.M. (Joint Exhibit 1) and an “as built” survey by Leo Mills, P.S.M. dated October 16, 2003, (Joint Exhibit 23),5 which indicate that the distance from the southern portion of the Bartizal dock to the northwestern corner of the old “T” portion of the Brown dock was 33.4 feet. See also Joint Exhibit 13 and Petitioners’ Exhibit J. Based on all of the available information of record, it appears that the western-most mooring piling of the previously constructed Brown dock was approximately 25 to 28 feet from the southern portion of the Bartizal “T” dock. The two originally constructed mooring pilings to the north of the Brown dock were constructed
closer to the Bartizal dock than originally permitted in 1995. See Finding of Fact 11.
Based on a later, February 16, 2004, “as-built” survey by Leo Mills, Jr., P.S.M., Petitioners’ Exhibit J, it appears that the two western-most mooring piles that extend northerly from the now-constructed Brown dock are 26.6 feet (west side of slip 3 (DEP Exhibit 6)) and 27.1 feet (west side of slip 4, id.) from the southeastern corner of the Bartizal “T” dock, which appears to be in close proximity to the two mooring pilings previously constructed. See also Findings of Fact 11 and 24. But, as noted herein, they are not located 40 feet from the Bartizal dock. See DEP Exhibit 7.
The water between the Bartizal dock and the Brown dock is very shallow. Bartizal stated that he could probably wade out to his southern dock at mean low tide. (Bartizal owns another dock to the north that also provides boat slips for access to the Inn.)
Bartizal testified that the previous configuration of the mooring pilings on the north side of the Brown dock allowed easier ingress to and egress from the south side of his dock. However, Bartizal further stated that the two western mooring pilings that now exist on the north side of the Brown dock have a greater impact on ingress and egress than the prior pilings. Bartizal believes that the two western-most mooring pilings are
not in the same location as previously constructed, although he is not sure.
The two as-built Brown slips (3 and 4) measure 21 feet in length to the north and nine feet in width. According to the document (Joint Exhibit 3, P 16 and DEP Exhibit 6) that is stamped approved by DEP, slip 3 was approved to measure 18’x 8’ and slip 4 was approved to measure 21’x 8’, which means that the slip 3 western mooring pile is off by three feet. Also, the actual width of all of the northern slips (slips three through seven) is greater than what was approved. Compare Joint Exhibit 3, P 16 and DEP Exhibit 6 with Joint Exhibit 13 and Petitioners’ Exhibit J. (DEP Exhibit 6 shows the DEP-approved distances between the pilings next to the Brown dock. It appears that the distance between the out pilings is the same.)
The two Bartizal slips facing the Brown dock are
22.4 feet in length by 12 feet. The southeastern corner of the Bartizal “T” dock is 51.6 feet from the northwestern corner of the Brown extended and constructed “L” shaped finger-dock. The two western-most Brown mooring pilings concern Bartizal. See Petitioners’ Exhibit J.
There are two videotapes of record that show boats entering, docking, and exiting from the slips at the Bartizal dock, on the south side facing the Brown dock. There are also photographs of the Brown-Bartizal docks. Boat captains,
navigating the area in and around the Brown-Bartizal docks, described their adventures in docking their boats.
For the purpose of a video, Captain Claire operated a 21.6-foot Wellcraft center console sport fishing boat with a 2.5-foot draft and an 8-foot wide beam and an outboard motor. During the docking procedure at the Brown/Bartizal docks, at times, Captain Claire trimmed his motor to avoid contacting the bottom with the propeller and lower portion of the engine. Coming from the north, he pulled the boat in between the Brown and Bartizal docks, backing the boat into the Bartizal boat slip, which is closest to the Brown western-most mooring piling. According to Captain Claire, he “had very little problem backing into that slip” which is 12 feet wide and 22.4 feet deep. If he had a choice, Captain Claire would not dock a 21-foot boat in this area. Smaller vessels with shallow drafts are more suitable for this location given the tidal influences and the shallow water depth.
Captain Claire was able to dock his boat at the same Bartizal boat slip by going forward into the slip. Captain Claire stated the distance of 26.6 feet between the Brown western-most mooring piling and the southeast portion of the Bartizal dock was “[v]ery typical.” (The two western-most Brown boat slips were empty when Captain Claire docked his boat, although there was a boat in the third slip that extended past
the mooring piling which did not impact his ability to dock his boat in the Bartizal slip.)
Captain Claire also stated he would not proceed south of the Brown dock in a large vessel unless the tide “was extremely high.”
Darrell Konecy holds a U.S. Coast Guard license for an uninspected passenger vessel. He operates a parasailing operation and keeps his boat moored off of Bartizal’s northern dock. His boat is 28 feet in length and roughly a 9.5-foot beam and a 3.5-foot draw, at the “lowest part of the scag.” For the video, he had difficulty maneuvering his boat into Bartizal’s boat slips and between the Bartizal and Brown pilings. With difficulty, he was successful when he backed in. The two western-most Brown dock slips were not occupied at this time. Prior to the Brown extension, leaving the Bartizal dock area to the north, Captain Konecy would travel to the east of the Brown dock mooring pilings, then south out to Longboat Pass. Now, he states that he cannot travel east of the new pilings because the water is too shallow. Captain Konecy does not navigate his boat south of the Brown dock during low tide.
Mike Greig holds a U.S. Coast Guard, “six pack license.” He has been boating in the waters around the Inn for approximately 20 years. He runs a 24-foot Robin, center console boat. He had difficulty docking his boat at the Bartizal dock
in light of the Brown dock and mooring pilings. Prior to the modification, he did not use the south side of Bartizal’s dock.
Prior to the construction of the modified Brown dock, Captain Greig was able to pass “pretty close” to the east of the Brown dock and travel south. He stated that there is a southern unmarked channel that runs from Longboat Pass up past the Brown dock. He agreed that an unmarked channel such as this is highly dependent on the tides and that the area would not be accessible to some boats at mean-low tide if the water were a very low spring tide. (He said most boats in the area are “small runabouts” which can get through the area.) He agreed that he could navigate his boat east of the existing Brown dock mooring pilings and through 4.5 feet of water as depicted on DEP Exhibit 4. He did not believe a boat that draws more than 3.5 feet could skirt east of the Brown pilings. Captain Greig also agreed that a boat with a 3.5-foot draw would have difficulty in waters as shallow as Sarasota Bay outside of the marked channel.
Based on the weight of the evidence, including but not limited to consideration of the tidal variations in and around the docks, the varying sizes of the boats that may enter and exit from the Bartizal/Brown docks, the size of the slips for both docks, and the varying skill of the boat captains, the two as-built western-most mooring pilings on the north side of the Brown dock (slips 3 and 4, see DEP Exhibit 6) are potentially
hazardous to incoming boats attempting to dock at the Bartizal dock on the south side and potentially hazardous to boats docked in slips three and four of the Brown dock. These mooring pilings should be removed. See Endnote 3.
The next issue is whether the extension of the Brown dock to the east, including the “L” shaped extension to the north and the mooring pilings to the east, adversely affects navigation.
The local channel begins just south of the Brown dock and travels in a north, northeast direction. DEP Exhibits 2 and 4; Joint Exhibits 7 and 15. Most of Bartizal’s customers utilize the northern channel to access his docks and Inn.
The water depths south of the Brown dock are shallower than north of the Brown dock. The weight of the evidence indicates that there is no defined channel that extends any further than approximately 20 feet south of the Brown dock.
Bartizal and others have traveled east and close to the old Brown “T” dock and then south of the Brown dock prior to the construction of the “L” extension. (The largest boat used by Bartizal to travel to the south of the Brown dock prior to the extension was 28 feet.) In this manner, they were able to access Longboat Pass via a shorter route. Boaters from the south could access the Inn without going around and entering the Bartizal docks from the north.
Depending on the size of the boat and draft and the tide, it would not have been prudent to proceed south of the Brown dock without having first-hand knowledge of the water depths even prior to the extension.
With the construction of the eastern extension of the Brown dock, when the tide makes passage possible, the depth of the water is sufficient east of the new Brown dock mooring pilings, i.e., east of the new northern “L” shaped finger-dock, to permit passage to the south, depending on the size of the boat and draft. Boaters to the south of the Brown dock can still proceed in a southeasterly direction through the Sound and out through Longboat Pass, subject to the caveat noted above. Joint Exhibit 2.
Larger boats leaving the Bartizal docks can proceed north, east, and then south to access Longboat Pass. Joint Exhibit 2. While it may be inconvenient to proceed in this fashion, the eastward extension of the Brown pilings and the “L” shaped finger dock do not adversely affect navigation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.
This proceeding, conducted pursuant to Section 120.57(1), Florida Statutes, is intended to formulate final
agency action, not to review action taken earlier and preliminarily. McDonald v. Florida Department of Banking and
Finance, 346 So. 2d 81 (Fla. 1st DCA 1977).
The burden of proof in the proceeding is on the party asserting the affirmative in the proceeding, here Brown and Teitelbaum. Florida Department of Transportation v. J.W.C.,
Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981). If a regulatory agency gives notice of intent to grant a permit application, the applicant has the initial burden of going forward with the presentation of a prima facie case of the applicant’s entitlement to a permit. In the context of this proceeding, Brown and Teitelbaum have the initial burden of showing reasonable assurance.
Once the applicant has made a prima facie case that the proposed permit should be issued, the petitioner must rebut that prima facie case and support the allegations of the petition, here the Amended Petition, challenging the proposed permit. Id. at 789. Unless the petitioner presents "contrary evidence of equivalent quality" to the evidence presented by the applicant, here Brown, the permit must be approved. Id. at 789-790.
Petitioners cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. Chipola Basin Protective Group, Inc. v. Department of
Environmental Regulation, Case No. 88-3355, 1988 WL 1859974 (DER
Dec. 29, 1988).
The applicant has the burden to prove reasonable assurance, not absolute guarantees, that the applicable conditions for the issuance of a permit have been satisfied. ManaSota-88, Inc. v. Agrico Chemicals, Co. and Florida
Department of Environmental Regulation, 12 F.A.L.R. 1319, 1325
(DER Feb. 19, 1990).
"Reasonable assurance" contemplates "a substantial likelihood that the project will be successfully implemented." Metropolitan-Dade County v. Coscan Florida, Inc., 609 So. 2d. 644, 648 (Fla. 3d DCA 1992). See also Hamilton County Board of County Commissioners v. Florida Department of Environmental Regulation, 587 So. 2d. 1378 (Fla. 1st DCA 1991).
In this proceeding, Petitioners claim that Brown's application to modify and extend the dock should be denied because Brown did not prove that the modified and extended dock does not adversely affect the public health, safety, or welfare or the property of others and navigation. See § 373.414(1)(a)
and 3., Fla. Stat.
Based on the weight of the evidence, Brown did not prove that the two western-most mooring pilings (slips 3 and 4) would not adversely affect boat traffic and boats moored (property of others) at the Bartizal and Brown docks on the
south and north sides, respectively. These two mooring pilings should be removed. The remaining portions of the modified Brown dock should be approved.
Brown proved by a preponderance of the evidence that the eastern and northern extension of the “L” shaped finger dock and the mooring pilings would not adversely affect navigation and that there is adequate navigable depth located to the east of the Brown dock. See generally Sarah E. Berger v. William Kline and Department of Environmental Protection, Case
No. 93-0254, 1994 WL 75879, at *6, *19 (DOAH Nov. 29, 1993; DEP
Jan. 11, 1994)(“It has been established that a mere inconvenience, if one exists, does not constitute the type of navigational hazard or adverse impact on navigation contemplated by” former Section 403.918(2)(a)3., Florida Statutes (1993), now Section 373.414(1)(a)3., Florida Statutes.)
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order adopting this Recommended Order and ordering Respondents, Harry Brown and David Teitelbaum, to remove the two western-most mooring pilings on the north side of their dock which border slips three and four. See DEP Exhibit 6 and Petitioners’ Exhibit J.
DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida.
S
CHARLES A. STAMPELOS
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 27th day of May, 2004.
ENDNOTES
1/ In their Proposed Recommended Order (PRO), Brown represents that the Brown dock, as well as the upland area and the submerged land under the Brown dock, is owned by Old Bridge Village, LLLP. See Brown PRO at 4. However, the 2002 application indicates that Brown is the owner of the land. See Joint Exhibit 3, pp. 2 and 5 of 5. Also, the 2002 DEP Permit was issued to Harry Brown and David Teitelbaum c/o Teitelbaum Development Company. Joint Exhibit 3. Brown is treated as the owner of the dock, etc. for the purpose of this proceeding.
2/ Brown’s consultant, Mr. Rector, stated that DEP Exhibit 7 “looks like a document that we submitted.” He could not document where the 40’ measurement came from. (Tr. 54-55.)
3/ This proceeding is not an enforcement case or a permit revocation case. Rather, Brown has applied for permission to modify an existing dock, including mooring pilings. One of two ultimate issues is whether any of the now as-built mooring pilings on the north side of the Brown dock adversely affect navigation and, in part, the property of others. The measurements reflected in this Recommended Order are derived from the evidence of record and fair inferences derived therefrom, not from representations made in the PROs.
Petitioners post-hearing objection to portions of DEP’s PRO is overruled.
4/ This sketch shows the physical location of existing features in relation to the riparian rights line.
5/ This survey was submitted to DEP as part of a 2002 permit condition. Joint Exhibit 3.
COPIES FURNISHED:
Kathy C. Carter, Agency Clerk Office of the General Counsel Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Nona R. Schaffner, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
L. Norman Vaughan-Birch, Esquire Jackson C. Kracht, Esquire
Kirk Pinkerton, P.A. 720 South Orange Avenue Post Office Box 3798
Sarasota, Florida 34230
James A. Harrison, Esquire
Porges, Hamlin, Knowles & Prouty, P.A. Post Office Box 9320
Bradenton, Florida 34206-9998
Mark A. Nelson, Esquire Ozark, Perron & Nelson, P.A. 2808 Manatee Avenue, West Bradenton, Florida 34205
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 | Document | Summary |
|---|---|---|
| May 27, 2004 | Recommended Order | Respondent proved reasonable assurance that dock modification and mooring pilings east of dock did not adversely affect navigation but did not provide reasonable assurance that two mooring pilings north of dock did not adversely affect property of others. |
