STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD GOSS, )

)

Petitioner, )

)

vs. ) CASE NO. 77-478

) HARRIE E. SMITH AND DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This proceeding came before the undersigned Hearing Officer on the Petition of Richard Goss, protesting the after-the-fact application of Harrie E. Smith to the Department of Environmental Regulation for a permit to construct a dock in Bonefish Bay, Marathon, Monroe County, Florida.

APPEARANCES

For Petitioner: Alfred K. Frigola, Esquire

Post Office Box 177 Marathon, Florida 33040

For Respondent: Ralph Cunningham, Esquire Smith Post Office Box 938

Marathon, Florida 33050

For Respondent: Terry Cole, Esquire

DER Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

The formal proceeding was conducted at the Monroe County Branch Courthouse, Marathon, Florida, at 11:00 a.m., June 7, 1977, to consider the allegations of the petition. After listening to the testimony, considering the exhibits and other arguments presented, the following findings are entered.

FINDINGS OF FACT

1. The Petitioner is the adjoining neighbor of Harrie E. Smith, the applicant, and runs the Coral Lagoon Resort. This is a commercial establishment which consists of rental units fronting on Bonefish Bay with an interior canal and a series of small boat docking facilities which give each unit docking space and water access. The Petitioner keeps two tame porpoises at the end of this canal which are a tourist attraction. The Petitioner's operation is tourist oriented particularly to those who come to the Keys for fishing or diving excursions.

2. The application to the Department of Environmental Regulation is to the installation of a wooden dock which runs parallel to the Petitioner's northern boundary line. The applicant, Mr. Smith, runs a commercial boat repair facility alongside Mr. Goss' establishment and it is clear there have been misunderstandings between them in the past. The dock has been installed and as noted above, the application to the Department of Environmental Regulation is for an after-the-fact authorization. The department has indicated it intends to grant the permit as it does not see that the dock will degrade water quality or create a condition adverse to the public interest.

   
   

3. The petition maintains that the dock will cause water quality problems in that it will encourage the docking of boats which will spill oil, gas and other contaminants into the waters and thereby degrade water quality. It should be noted that the Petitioner maintains extensive docking facilities in his establishment and could be subjected to the same argument.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Petitioner has not proven by competent, substantial evidence that the applicant should be denied this permit, which the department intends to issue. No evidence was presented from which a finding could be made that the dock will cause a violation of state water quality standards. The agency with direct responsibility for this question, the Department of Environmental Regulation, has analyzed the application and concluded that the permit should be issued. Petitioner has not demonstrated that the conclusion of the department is erroneous. It is, therefore,

RECOMMENDED:

That the permit be granted.

DONE and ENTERED this 12th day of July, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1977.

COPIES FURNISHED:

Alfred K. Frigola, Esquire Ralph Cunningham, Esquire Post Office Box 177 Post Office Box 938 Marathon, Florida 33040 Marathon, Florida 33050

Terry Cole, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 77-000478

Orders for Case No: 77-000478