Judges: MICHAEL P. DODSON
Agency: Department of Environmental Protection
Latest Update: May 05, 1982
Summary: Respondent didn't act on application within the time limit and application must be deemed granted.
81-2609STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GROVE ISLE, LTD, )
)
Petitioner, )
)
vs. ) CASE NO. 81-2609
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
DAVID A. DOHENY, )
)
Intervenor-Respondent. )
)
RECOMMENDED ORDER
Pursuant to Section 120.57(1)(b)8. Florida Statutes (1981) and Section 28- 5.402, Florida Administrative Code the following Recommended Order is submitted.
APPEARANCES
For Petitioner: Kenneth G. Oertel, Esquire
OERTEL & LARAMORE, P.A.
646 Lewis State Bank Building Tallahassee, Florida 32301
and
Larry Stewart, Esquire
FLOYD, PEARSON, STEWART, RICHMAN, GREER & WEIL
One Biscayne Tower, Twenth-Fifth Floor Miami, Florida 33131
For Respondent: Alfred J. Malefatto, Esquire
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Intervenor- Douglas M. Halsey, Esquire Respondent: PAUL & THOMSON
1300 Southeast First National Bank Building Miami, Florida 33131
PROCEDURAL BACKGROUND
This case has a long history. On October 23, 1979 Respondent, Department of Environmental Regulation (DER) issued a Notice of Intent to grant Grove, Ltd., a water quality control permit to construct a 90 slip marina on Grove Isle
in Biscayne Bay, Florida. Various third parties objected to the project and requested a Section 120.57(1) hearing which was held in January, 1980. By a Recommended Order dated February 22, 1980, the Hearing Officer recommended that the permit be granted. In its Final Order DER remanded the case to the Division of Administrative Hearings for additional findings on the applicability of Section 17-4.242, Florida Administrative Code (The Outstanding Florida Waters Rule). A hearing on remand was held on May 12, 1980. A Recommended Order was sent to DER on November 12, 1980. Denial of the requested permit was recommended in light of the Outstanding Florida Waters Rule. By a Final Order entered on December 29, 1980 the Secretary of the Department of Environmental Regulation denied Grove Isle's permit application.
The instant proceedings began on May 20, 1981 when Petitioner again applied for a water quality control permit to construct its proposed marina. Upon the entry of a letter of intent by the Department to deny the application Petitioner requested a Section 120.57(1) hearing.
On January 21, 1982, Petitioner filed a Motion For Summary Recommended Order requesting a default permit. DER filed a response on January 26, 1982 and argument of counsel was heard on January 29, 1982, in Tallahassee, Florida.
Subsequent to the hearing the Hearing Officer entered an Order to Show Cause which required Petitioner to show cause why its application for the permit should not be barred by the doctrine of res judicata. The Order alternatively required the Department to demonstrate why its possible defense of res judicata should not be deemed waived by its course of conduct in these proceedings. Both parties have filed responses to the Order. 1/ Subsequently David A. Doheny requested leave to intervene on the side of the Department. That request was granted by an Order dated February 8, 1982.
FINDINGS OF FACT
The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354.
On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself."
In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code.
By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated:
May 18, 1981
Mr. Larry O'Donnell
Department of Environmental Regulation Post Office Box 3858
West Palm Beach, Florida 33402
RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell:
On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina.
Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application:
A scale drawing (one inch = 100') of the proposed facility. (which you have)
A certified survey of the proposed mixing zone. (one inch = 100')
An application fee of $20.00
A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application.
A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have)
As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality.
However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to:
Bottom sediments placed in suspension by
the installation of the concrete piles used to support the docking facility during construction;
Minimal amounts of oil and grease which may escape from the various vessels moored to the docks;
The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks.
Turbidity will be controlled by the use of curtains during construction.
If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C.
Please advise me should additional information be needed to process this re-application.
Yours truly,
/s/ KENNETH G. OERTEL
On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information:
Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in
the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period.
Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part:
Dear Mr. Duke:
If you would check your previous file no.
DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application.
I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr.
Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone.
The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that:
This project was reviewed previously (DF
13-7956) and was determined not to be clearly in the public interest pursuant to Section
17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest.
Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244,
F.A.C. and can be applied only during the construction period, pursuant to Section
17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C.
This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case. Section 120.57(1), Florida Statutes (1981).
The issuance of licenses by administrative agencies is governed by Section 120.60(2), Florida Statutes (1981), which provides in its pertinent part that:
. . .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. . .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. . . Any application for a license not approved or denied within the 90-day or shorter time
period, within 15 days after conclusion of a public hearing held on the application, or within 45 days after the recommended order is submitted to the agency and the parties, whichever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued. . . (emphasis added)
The facts in the present record demonstrate that Grove Isle's permit was received by DER on May 20, 1981. Exactly 30 days later the Department sent a completeness summary form to Petitioner which requested additional information in support of the application. This request tolled the running of the "clock" on the Department's time to act on the application. The sole issue between the parties on Petitioner's Motion For Summary Recommended Order is whether Petitioner's response to the Department's request was sufficient to start the 90-day clock running again. I conclude that Petitioner's response was sufficient.
Mr. Oertel's letter of June 22, 1981 which responded to DER's request for additional information was enigmatic. See Findings of Fact 4 and 5 above. So too is the concept of "affirmatively in the public interest." To demonstrate public interest in a permit an applicant cannot point to a single scientific report or conclusion as it normally would in response to mundane requests for additional information. For this reason Mr. Oertel's reference to the record in the previous proceedings was an adequate reply. This conclusion is limited to the unique context of this case.
As discussed in the Order To Show Cause entered on February 1, 1982, the Department upon receipt of Petitioner's June 22 letter proceeded as though the application were complete. It did not inform Petitioner that Grove Isle's response was inadequate, but instead issued a denial letter on September 23, 1981. The denial was not based on the application's incompleteness but was based on DER's determination that Grove Isle had not supplied the reasonable assurances required by the Department.
I conclude under the unique circumstances of this case Grove Isle's application for a permit was complete on June 25, 1981 when DER received Mr. Oertel's letter of June 22, 1981. Because the Department did not act on the application until September 23, 1981, ninety-one days later, a default permit must be issued to Grove Isle, Ltd. pursuant to Section 120.60(2), Florida Statutes (1981). World Bank v. Lewis, 406 So.2d 541 (Fla. 1st D.C.A. 1981); Quayside Associates v. Department of Environmental Regulation, 3 FALR 499A (Florida Department of Environmental Regulation, Final Order, February 5, 1981).
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354.
DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida.
MICHAEL P. DODSON
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
ENDNOTE
1/ In its Response the Department stated, "However, the Department is of the opinion that res judicata does not act as a bar to Grove Isle's reapplication since the second application, as a matter of law, was not identical to the first application.
COPIES FURNISHED:
Kenneth G. Oertel, Esquire OERTEL & LARAMORE, P.A.
646 Lewis State Bank Building Tallahassee, Florida 32301
Larry Stewart, Esquire
FLOYD PEARSON STEWART RICHMAN GREER & WEIL
One Biscayne Tower Twenth-Fifth Floor Miami, Florida 33131
Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Douglas M. Halsey, Esquire PAUL & THOMSON
1300 Southeast First National Bank Building
Miami, Florida 33131
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
GROVE ISLE, LTD,
Petitioner,
vs. OGC CASE NO. 81-0337
DOAH CASE NO. 81-2609
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
DAVID A. DOHENY,
Intervenor-Respondent.
/
FINAL ORDER
This case comes before me for consideration of an April 16, 1982, Order Rejecting Remand issued by the hearing officer in the above-styled case.
Pursuant to Sections 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 28-5.402, the Department treats this order as a recommended order. Neither the Petitioner, Grove Isle, Ltd., the Respondent, Department of Environmental Regulation, nor the Intervenor-Respondent, Mr.
Doheny, have filed exceptions as provided in Florida Administrative Code Rule 17-1.68(1) and Section 120.57(1)(b)8., Florida Statutes.
FINDINGS OF FACT
Much of the relevant chronology of this case is set forth in the hearing officer's April 16, 1982, and February 12, 1982, orders; and the findings of fact in those orders are hereby adopted in toto. However, several additional facts need to be set out in this order to bring the chronology up to date.
On March 29, 1982, the Department entered an order (a copy of which is attached as Exhibit A) adopting the findings of fact in the hearing officer's February 12, 1982, Recommended Order, but rejecting certain conclusions of law and remanding the case to the hearing officer for the purpose of holding a fact finding hearing on the merits. I concluded as a matter of law that the Department had failed to comply with the time restraints of Section 120.60, Florida Statutes, and was thus precluded from arguing before the hearing officer that a permit should be denied. However, I also concluded that Section 120.60(2), did not act to deprive third parties who would be substantially affected by issuance of the permit of their rights to challenge such issuance.
No hearing on the merits was held by the hearing officer. Instead, he issued an Order Rejecting Remand dated April 16, 1982, (a copy of which is attached as Exhibit B) which contained several unlabelled conclusions of law relating to the rights of intervenors and the existence of remaining issues in the case.
CONCLUSIONS OF LAW
For the reasons set forth below, I conclude that the permit sought by Grove Isle should be issued as recommended by the hearing officer. However, certain conclusions of law contained in the hearing officer's April 16, 1982, order must be rejected.
Based on the facts set forth in his order, the hearing officer concluded that the intervenor's right to request a hearing was foreclosed by the Department's default since "[t]he Department as representative of Mr. Doheny and all the other citizens of the State of Florida let the time in which it could deny Grove Isle's application expire," and since the intervenor did not request a hearing on the Department's letter of intent to deny the permit within 14 days of receipt of notice. I reject this conclusion of law.
The Department is not, as suggested in the Order Rejecting Remand, a "representative" of all the citizens of the State and its actions do not bind other parties. Agencies do make mistakes and the legislature recognized the need for a forum in which those mistakes could be brought to light and corrected when it adopted Chapter 120, Florida Statutes. In this administrative process, intervenors are full parties, with the same rights as petitioners or respondents. See Fla. Admin. Code Rule 28-5.104. The rule in judicial proceedings that intervention is in subordination to the main proceeding is not applicable in the present situation and would be contrary to the legislative intent in Chapter 120, Florida Statutes, as was more fully discussed in the Department's March 29th Order (Exhibit A).
The hearing officer's statement that the intervenor waived his right to a hearing by failing to request one within 14 days of proposed agency action ignores the fact that the action (denial of the permit) was exactly what the intervenor wanted. He would have had no reason to request a hearing on that proposal and undoubtedly lacked standing to do so. Once a hearing is requested by a substantially affected person, however, persons other than the original parties may petition to intervene. The intervenor in this case filed such a petition within the time limits prescribed by Florida Administrative Code Rule 28-5.207, and it was granted by the hearing officer. The 14 day time period set forth in Florida Administrative Code Rule 17-1.62(1)(b) is not applicable to the intervenor in this case.
I also reject the hearing officer's conclusion of law that the issue of a third party's rights when the Department has defaulted on a permit has been addressed previously. The Department's final order in Booker Creek Preservation, Inc. v. City of St. Petersburg and Department of Environmental Regulation, Case No. 79-1667, 2 F.A.L.R. 324A, did not specifically address the rights of third parties and that issue does not appear to have been raised explicitly before the hearing officer. I do not find that the Booker Creek order is binding on me in this case.
Despite my rejection of these conclusions of law, however, I must ultimately agree with the hearing officer that the permit should be issued. Florida Administrative Code Rule 28-5.207 provides in part:
Petitions for leave to intervene must be filed at least five (5) days before the final hearing, and should be in conformance with
28-5.201(2) and shall also include allegations sufficient to demonstrate that the intervenor is entitled to participate in the proceeding as a matter of constitutional or statutory right or that the substantial interests of the intervenor are subject to determination or will be affected through the proceeding. (Emphasis added).
Florida Administrative Code Rule 28-5.201(2) states the required contents of petitions filed in Section 120.57 hearings. Among other things, the petition must include a statement of all disputed issues of material fact and a statement of ultimate facts alleged which entitle the petitioner to relief. In his April 15th order, the hearing officer concluded that the intervenor's petition failed to meet these requirements in that it was "devoid of any issue relating to Grove Isle's right to a water quality control permit."
While insufficient pleadings may be amended when allowed by order of the hearing officer, a party has no right to amend without such concurrence. See Fla. Admin. Code Rule 28-5.202. Having forwarded this cause to the Division of Administrative Hearings, the Department must defer to the hearing officer's determination that there are no justiciable issues presented by the intervenor's petition.
ORDER
Accordingly, having considered the hearing officer's order and the record below, it is
ORDERED that the hearing officer's findings of fact are adopted, the conclusions of law are adopted only to the extent that they are consistent with this Final Order, and that a permit be issued to Grove Isle, Ltd., within thirty days of the effective date of this order.
DONE AND ENTERED this 4 day of May, 1982, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-4805 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by United States Mail to the following this 5th day of May, 1982.
Kenneth G. Oertel, Esquire Oertel & Laramore, P.A.
646 Lewis State Bank building Tallahassee, Florida 32301
Larry Stewart, Esquire Floyd, Pearson, Stewart, Richman, Greer & Weil, P.A.
One Biscayne Tower, 25th Floor Miami, Florida 33131
Douglas M. Halsey, Esquire Paul & Thomson, P.A.
1300 Southeast First National Bank Building
Miami, Florida 33131
Alfred J. Malefatto, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Michael Pearce Dodson Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
MARY F. CLARK
General Counsel
State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
Docket for Case No: 81-002609
Orders for Case No: 81-002609
| Issue Date |
Document |
Summary |
|
May 04, 1982 |
Agency Final Order
|
|
|
Feb. 12, 1982 |
Recommended Order
|
Respondent didn't act on application within the time limit and application must be deemed granted.
|
