a) STATE OF FLORIDA Fil ED DEPARTMENT OF ENVIRONMENTAL PROTECTION 2800 JU 23 A 93 MARTIN AND LINDA PARLATO, HLVISION OF MOMINISTR aT ye Petitioners, HEARINGS vs. OGC CASE NO. 07-2087 DOAH CASE NO. 08-0849 DEPARTMENT OF ENVIRONMENTAL PROTECTION and SECRET OAKS OWNERS ASSOCIATION Respondents. ee ee eee ee eS SS FINAL ORDER On May 9, 2008, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings (“DOAH”) submitted his Recommended Order of Dismissal (“ROD”) to the Department of Environmental Protection (“Department”) in this proceeding. A copy of the ROD is attached hereto as Exhibit A. The ROD indicates that copies were served to the Petitioners, Martin Parlato and Linda Parlato (‘Petitioners”); and to counsel for the Co-Respondents, Secret Oaks Owners Association (“Secret Oaks”) and the Department. The parties did not file any Exceptions to the Recommended Order of Dismissal. This matter is now before the Secretary for final agency action. BACKGROUND On November 9, 2007, the Department issued its notice of intent to issue an environmental resource permit (“ERP”) to Secret Oaks to construct a multi-family use dock within the St. Johns River in St. Johns County. The notice also acknowledged that the previously granted consent to use sovereign submerged lands did not expire and continued in effect. The Petitioners challenged the notice of intent and the Department referred the petition to DOAH to conduct an evidentiary hearing. Secret Oaks filed a Motion to Dismiss on March 27, 2008, and the ALJ entered an Order Granting Motion to Dismiss with Leave to Amend on April 10, 2008. The Order stated that the petition did not clearly allege that Secret Oaks’ application should be denied based on any criteria for issuance of an ERP. In addition, the Florida Administrative Code Rule 18-21.004 criteria cited in the petition were not at issue because the opinion of the First District Court of Appeal in Parlato v. Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 4st DCA 2001 ), established the law of the case on those criteria. The Court held that the criteria were met and ordered the Department to issue the consent of use to Secret Oaks for the dock project at issue. The Department issued the consent of use in 2002. The Order further stated that although Secret Oaks had to apply for an ERP in 2007 because its Wetlands Resource Permit had expired, it did not have to and did not re-apply for consent to use sovereign submerged lands. The Order gave the Petitioners ten days to amend in order to allege cognizable grounds for denial of the ERP, if any existed. On April 16, 2008, the Petitioners filed a Request for Extension of Time and Stay of Proceedings. On April 21, 2008, the Petitioners filed a “2nd Request for Stay; Request for Extension of Time for Amendment and Motion to Take Notice of Newly Filed Proceedings.” On April 28, 2008, the ALJ entered an Order Denying Stay. The Order Denying Stay indicated that the ALJ viewed the filings as having tolled the time to comply with the Order Granting Motion to Dismiss with Leave to Amend, such that the time to comply with that Order was extended to May 7, 2008. The Petitioners did not amend their petition and on May 9, 2008, the ALJ entered his ROD. CONCLUSION The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of ALJs by filing exceptions to DOAH recommended orders. See Couch y. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party “has thereby expressed its agreement with, or at least waived any objection to, those findings of fact.” Environmental Coalition of Florida, Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1 DCA 1991). The ALJ’s ROD found that the Petitioners did not amend their petition and recommended entry of a final order dismissing the petition with prejudice and issuing the ERP to Secret Oaks. The Petitioners did not file any Exceptions to the ALJ’s recommendation. Having considered the applicable law and standards of review in light of the findings and conclusions set forth in the ROD, and being otherwise duly advised, it is ORDERED that: A. The Recommended Order of Dismissal (Exhibit A) is adopted in its entirety and incorporated herein by reference. B. Petitioners, Martin and Linda Parlato’s, petition is dismissed with prejudice. Cc. The Department's Northeast District Office is directed to issue as soon as possible, Permit Number 55-209235-001-ES to Respondent, Secret Oaks Owners Association, in accordance with the terms and conditions of the November 9, 2007, notice of intent to issue. Any party to this proceeding has the right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department. L. DONE AND ORDERED this LT day of June, 2008, in Tallahassee, Florida. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION Ve MICHAEL W. SOLE Secretary Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, ( ! CLERK DATE CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to: Martin Parlato Linda Parlato Post Office Box 600666 Jacksonville, FL 32260 Patrick W. Krechowski, Esquire Lewis, Longman & Walker, P.A. 245 Riverside Avenue, Suite 150 Jacksonville, FL 32202-4931 Claudia Llado, Clerk and J. Lawrence Johnston, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 and by hand delivery to: Amanda G. Bush, Esquire Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 this B of June, 2008. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION FRANCINE M. FFOLKES Administrative Law Counsel 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 08-000849