STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR MANNES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1485

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 5, 1981, in Key West, Florida.

The Petitioner, Arthur Mannes, appeared on his own behalf; and H. Ray Allen, Esquire, Tallahassee, Florida, appeared on behalf of the Respondent, State of Florida, Department of Environmental Regulation.

Petitioner requested an administrative hearing on the Department's intent to deny his application for a permit, alleging the Department's proposed denial of that application to be both erroneous and untimely. Accordingly, the issue for determination is whether Petitioner's application should be granted or denied.

Petitioner testified on his own behalf. Respondent presented the testimony of Jeremy Craft and of Curtis Kurer. Additionally, Respondent's Exhibits 1 through 11 were admitted into evidence.

FINDINGS OF FACT

1. On May 23, 1978, the Department of Environmental Regulation received Petitioner's application for activities in waters of the State of Florida. According thereto, Petitioner desired to construct approximately 225 feet of riprap seawall and to dredge a channel 50 feet wide by 1,250 feet long in order to provide access for a proposed marina. The application recited that the project involved dredging 3,670 cubic yards of material, and further advised Respondent that the planned motorboat fueling facilities will meet all prevailing codes and regulations, and that an approved holding tank for sewage pump-out will be installed. On May 30, 1978, Respondent forwarded to Petitioner its completeness summary form itemizing the additional information needed in order to determine the merits of Petitioner's application. In Response thereto, Petitioner provided additional information and assured the Respondent that the remainder of the information required would be forthcoming. On June 14, 1978, the Department again requested additional information from the Respondent, some of which information had been previously requested in the May 30, 1978, completeness summary. On September 11, 1978, the Department again wrote to Petitioner requesting the information requested by it on June 14, 1978.

   Petitioner responded to the most recent correspondence on September 25, 1978, by advising why some of the information had not yet been provided and requesting the Respondent to delay his application in order that he might continue to attempt to obtain the required information. On December 20, 1978, the Department again wrote to the Petitioner requesting the information previously requested on May 30 and June 14 and advising Petitioner that it would issue an intent to deny the application unless Petitioner contacted the Department by January 4, 1979.

   
   

2. On January 29, 1979, Respondent received from Petitioner a new application for activities in waters of the State of Florida. This application obviously involved the same project, except that the channel to be dredged is widened to 100 feet and the amount of material to be dredged is increased to 11,700 cubic yards. The information regarding the planned motorboat fueling facilities and the approved holding tank for sewage pump-out remain the same. This application was considered by the Respondent to be a revision of the original application, rather than a new application, for the reasons that some of the required documents were already on file and the filing of a new application would require a new application fee. An additional completeness summary was forwarded to the Petitioner, although possibly not until March 26, 1979. Petitioner was again advised on July 3, 1979, as to the need for additional information, and Petitioner returned that form letter and requested an additional 30 to 45 days to complete his application. On August 6, 1979, Respondent received Petitioner's response to its July 3, 1979, request, and on October 29, 1979, the Respondent again advised Petitioner of additional required information. On April 7, 1980, Respondent directed additional correspondence to Petitioner. On April 8, 1980, the Department completed Its biological and water quality assessment, which assessment contained the recommendation that the project be denied as proposed. On July 2, 1980, Respondent forwarded to Petitioner its intent to deny the project.

   
   

3. During the entire time period described above, discussions regarding information needed by the Respondent occurred between Jeremy Craft, one of Respondent's administrators, and both the Petitioner and the Petitioner's engineer. By the time of the final hearing in this cause, Petitioner's application was still not complete.

   
   

4. Curtis Kurer, a former employee of the Department of Environmental Regulation, performed an on-site inspection on April 4, 1980, as part of the biological and water quality assessment of Petitioner's project as revised by the January 29, 1979, application filed by the Petitioner. His report extensively analyzes the adverse impacts expected from Petitioner's dredging activities and placement of a marina at the project site. His conclusion is that the project, as proposed, be disapproved. On October 23, 1980, the Respondent received a copy of the report of the Florida Game and Fresh Water Fish Commission, which report also concluded that the application for permit should be denied because of the adverse environmental effects of Petitioner's project.

   
   

   CONCLUSIONS OF LAW

   
   

5. Each of the above findings of fact is based upon the uncontroverted evidence made part of the record in this cause either by the testimony of Respondent's witnesses or by the introduction into evidence of Respondent's exhibits, all of which evidence was made part of the record only after the Petitioner had rested. Petitioner presented no testimony other than his own, which testimony did not contain even a description of the project. Likewise,

   Petitioner failed to present any documentary evidence in support of his permit application, even failing to introduce into evidence a copy of the application itself.

   
   

6. Since Petitioner failed to present evidence regarding the nature of his proposed project, it is axiomatic that he has failed to provide reasonable assurances that the project would not result in violation of state water quality standards, that he has failed to provide reasonable assurances that the project would not adversely affect the natural resources of the area, and that he has failed to affirmatively show the project to be in the public interest. Chapters

   253 and 403, Florida Statutes; Chapters 17-3 and 17-4, Florida Administrative Code. In view of the fact that Petitioner had failed to establish a prima facie case at the close of his evidence, it would have been appropriate to conclude the hearing at that juncture without requiring the Respondent to put on its case. However, in his opening statement, and in most of his testimony, Petitioner argued that he was entitled to a permit (for his undescribed project) since Respondent had not acted upon his application within 90 days.

   Accordingly, the burden of going forward did shift to the Respondent on that limited issue only.

   
   

7. Section 120.60(2), Florida Statutes (1979), reads, in pertinent part, as follows:

. . . Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this

30-day period. . .Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law. . .(e.s.)

Petitioner's original application was filed with the Department of Environmental Regulation on May 23, 1978. Seven days thereafter, Respondent notified Petitioner of the additional information necessary in order for Respondent to evaluate the application. Over the next two years, despite repeated requests by Respondent, Petitioner supplied only some of the requested information and has never completely provided the documentation required by Respondent.

Accordingly, Respondent properly requested Petitioner to supply the necessary information within the 30 days allowed by law for such a request, and the 90-day time period in which Respondent must act upon a completed application has yet to begin.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED

That a final order be entered denying Petitioner's application. RECOMMENDED this 5th day of March, 1981, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1981.

COPIES FURNISHED:

Mr. Arthur Mannes Mannes Trailer Park Maloney Avenue

Key West, Florida 33040

H. Ray Allen, Esquire Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-001485

Orders for Case No: 80-001485