STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOOKER CREEK PRESERVATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1053

)

CITY OF ST. PETERSBURG and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative hearings by its duly designated Hearing Officer K. N. Ayers, held a public hearing in the above styled case on 23 August 1978 at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Judith Smith Kavanaugh, Esquire

543 Tenth Street West Bradenton, Florida 33505

For Respondent Peter D. Hooper, Esquire City of St. 214 Municipal Building

Petersburg: St. Petersburg, Florida 32301

For Respondent Alfred W. Clark, Esquire

Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32301

By Petition for Formal Proceedings filed prior to 1 June 1978, Booker Creek Preservation, Inc., Petitioner, seeks a hearing to protest Respondent, Department of Environmental Regulation (DER's) notice of intent to issue a permit to Respondent, City of St. Petersburg, to construct outfall lines into Booker Creek. The Petition recites that Petitioner received notice of DER's intent to issue the construction permit on May 18, 1978. Thereafter, the Petition was duly filed with DER who forwarded the Petition to the Division of Administrative Hearings on 7 June 1978 for the appointment of a Hearing Officer pursuant to Section 120.57(1), Florida Statutes.

Prior to the introduction of any evidence, Respondent, City of St.

Petersburg, moved that the proceedings be dismissed. As grounds therefor it was alleged, and evidence thereof produced, that by letter dated May 26, 1978, Respondent DER, had issued a permit to the City for the work proposed and that the City had accepted the permit on 30 May 1978. Therefore, the City concluded that final agency action had been taken and appeal there from was to the

Governor and Cabinet or Environmental Regulation Commission. A written Motion to Dismiss confirming the above noted allegations was filed August 23, 1978.

Petitioner stated, and no party contested the statement, that no notice of the issuance of the permit, either actual or constructive, had been received by Petitioner until 18 August 1978 and that an actual copy of the permit was not received by Petitioner until 19 August 1978.

FINDINGS OF FACT and CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case.

   
   

2. Petitioner is a party whose substantial rights are affected by the issuance of the permit herein involved.

   
   

3. Petitioner received notice of intent to issue the permit requested by the City of St. Petersburg and timely filed motions thereto and requested a public hearing pursuant to Section 120.57, Florida Statutes.

   
   

4. Prior to the filing of this Petition, DER issued the requested permit to the City of St. Petersburg.

   
   

5. Issuance of this permit constituted final agency action by DER. Rule 17-1.70, Florida Administrative Code.

   
   

6. At the time the permit was issued to the City of St. Petersburg, DER had notice of Petitioner's interest in proceedings and of Petitioner's intent to protest the issuance of the permit. Accordingly, Petitioner should have standing to appeal from the issuance of the permit pursuant to Rule 17-1.71, Florida Administrative Code, which provides in pertinent part:

   
   

   1. Only parties of record to final agency action subject to appeal may initiate an appeal.

      
      

      1. The Commission may allow other persons to intervene as parties to the appeal who were not parties to the final agency action, if such persons demonstrate that:

         1. They have standing under Section 120.57, F.S., and that

         2. They had no reasonable notice of the agency proceeding prior to the entry of the written document representing final agency action.

      
      

7. While the above quoted rules do not specifically apply to the facts here involved, the rationale of those rules does apply. That rationale is that parties whose substantial interests are affected by agency action must be given notice of agency action before they lose their right to appeal from such final agency action. Since there was no dispute regarding Petitioners actual notice on 18 August 1978 of the issuance of the permit by DER, Petitioner should have

   15 days from that date in which to file an appeal to the final agency action encompassed in the issuance of the permit to the City of St. Petersburg on 26 May 1978 which was accepted by the City on 30 May 1978.

8. From the foregoing it is concluded that the issuance of the permit on

   26 May 1978 to the City of St. Petersburg to construct outfalls into Booker Creek constituted final agency action from which Petitioner's sole recourse is an appeal to the Environmental Regulation Commission.

   
   

9. It is further concluded that the issuance of the permit before the time allowed Petitioner to petition for hearing after being notified by DER of its intent to issue the permit, and the subsequent failure of DER to advise Petitioner of the issuance of the permit until immediately prior to the scheduled hearing on the Petition opposing the issuance of the permit, tolled the time in which Petitioner has to appeal from the final agency action represented by the permit issued to the City of St. Petersburg. It is therefore

Recommended that the Petition of Booker Creek Preservation, Inc. for a hearing to contest the issuance of a permit to the City of St. Petersburg to construct two outfalls in Booker Creek be dismissed for the reason that the issuance of this permit rendered moot the notice of intent to issue this permit.

Done and entered this 1st day of September, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Judith Smith Kavanaugh, Esquire

543 Tenth Street West Bradenton, Florida 33505

Peter D. Hooper, Esquire

214 Municipal Building

St. Petersburg, Florida 32301

Alfred W. Clark, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 78-001053

Orders for Case No: 78-001053