STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASA MARINA DEVELOPMENT, INC., ) ROYAL PELICAN DEVELOPMENT, INC., ) and STARDIAL INVESTMENTS CO., )

)

Petitioners, )

)

vs. ) CASE NO. 90-8051

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 11, 1991, in Fort Myers, Florida.

APPEARANCES

For Petitioners: Mark A. Ebelini, Esquire

Robert E. Bone, Jr., Esquire 1625 Hendry Street

Suite 301

Fort Myers, Florida 33901

For Respondent: Debra W. Schiro, Esquire

Kelly Brewton, Esquire

3900 Commonwealth Boulevard, MS-35 Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

The issue is whether petitioners' development is entitled to a favorable determination by respondent under Subsection 380.0651(3)(e)1.c., Florida Statutes (1989), and thus is exempt from development of regional impact review.

PRELIMINARY STATEMENT

On September 5, 1990, petitioners, Casa Marina Development, Inc., Royal Pelican Development, Inc. and Stardial Improvements Company, requested respondent, Department of Natural Resources (DNR), to issue a determination under Subsection 380.0651(3)(e)1.c., Florida Statutes, concerning petitioners' proposal to add 132 wetslips to their project located in Lee County, Florida. A favorable determination would mean that petitioners would not be required to submit their project for development of regional impact review. By letter dated November 8, 1990, DNR advised the Department of Community Affairs that it was "unable to determine that (petitioners') project will not have an adverse impact on Outstanding Florida Waters in Class II waters and will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or

likely to be, frequented by manatees". Accordingly, petitioners requested a formal hearing to challenge this preliminary determination. The matter was referred by respondent to the Division of Administrative Hearings on December 20, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated January 23, 1991, a final hearing was scheduled on April 17, 1991, in Fort Myers, Florida. At the request of petitioners, and with respondent's agreement, the matter was continued to May 15, 1991, at the same location. Thereafter, respondent's agreed upon motion for continuance was granted and the matter was rescheduled to June 11, 1991.

At final hearing petitioners presented the testimony of Dr. Thomas H. Fraser, III, accepted as an expert in water quality and estuarine shoreline processes. Also, petitioners offered petitioners' exhibits 1-25. All exhibits were received in evidence except exhibits 5, 8, 14, 15 and 16. Exhibit 22 is the deposition of David J. Trimble, a DNR environmental specialist. Respondent presented the testimony of R. Kipp Frohlick, a DNR biological administrator and accepted as an expert in manatee issues, Patrick M. Rose, a DNR environmental administrator and accepted as an expert in manatee issues, Heather S. Stafford, a DNR environmental specialist, and Lt. Denis L. Grealish, a Florida Marine Patrol officer. Also, it offered respondent's exhibits 9, 11, 17, 18, 28, and 30-33. All exhibits were received in evidence.

The transcript of hearing (two volumes) was filed on July 17, 1991.

Proposed findings of fact and conclusions of law were originally due on August 1, 1991. At the request of respondent, this time was extended to and including August 12, 1991, and at petitioners' request, was later extended to August 13, 1991. Proposed recommended orders were timely filed by the parties. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Petitioner, Casa Marina Development, Inc. (Casa Marina), is owner and developer of 1.2 acres of a 9.8 acre parcel known as Casa Marina located within the Bay Beach development on Estero Island in Lee County, Florida. Casa Marina also has an option to purchase the remaining 8.6 acres of this parcel. Petitioner, Royal Pelican Development, Inc. (Royal Pelican), is the owner and developer of a parcel of property in Bay Beach known as Royal Pelican. Petitioner, Stardial Investment Company (Stardial), is owner of the Bay Beach development which includes the parcels known as Casa Marina and Royal Pelican. It also owns the remaining 8.6 acres of Casa Marina as well as additional property in Bay Beach.

      
      

   2. Bay Beach is a water-oriented residential community located adjacent to Estero Bay in Lee County, Florida. In 1975 it received development approval as a development of regional impact (DRI) from the Department of Community Affairs (DCA) for 1,731 residential units and appurtenant structures.

      
      

   3. On September 5, 1990, Stardial requested that respondent, Department of Natural Resources (DNR), determine pursuant to Subsection 380.0651(3)(e)1.c., Florida Statutes (1989) that seventy-nine proposed wet slips at Casa Marina and fifty-three proposed wet slips at Royal Pelican would be located so as not to

      have an adverse impact on Outstanding Florida Waters or Class II waters nor to contribute boat traffic in a manner that would have an adverse impact on an area known to be, or likely to be, frequented by manatees. 1/ Such advice was to be given in writing to the DCA. Petitioners sought a favorable DNR determination since by law this would potentially allow them to construct the above wet slips without further DRI review by the DCA.

      
      

   4. By letter dated November 8, 1990, DNR advised the DCA that it was unable to make a favorable determination. More specifically, the letter stated that "the Department of Natural Resources is unable to determine that the project will not have an adverse impact on Outstanding Florida Waters or Class II waters and will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." This preliminary determination prompted petitioners to request a formal hearing.

      
      

2. The Project Site

1. Petitioners' developments are located in the southern end of Estero Island, an elongated, narrow island which is just west of the mainland portion of Lee County and to the southeast and south, respectively, of the Cities of Cape Coral and Fort Myers, Florida.

   
   

2. Within the Bay Beach development are two condominium projects known as Casa Marina and Royal Pelican. Together, they have a total of one hundred sixty-one existing wetslips. Petitioners intend to add one hundred thirty-two ownership-oriented boat slips and to this end have obtained all necessary approvals pursuant to Chapters 253, 373 and 403, Florida Statutes. Most recently, on February 8, 1990, DER issued a permit to Royal Pelican authorizing

   it to construct a 700' x 6' linear dock with twenty-five 20' x 3'finger piers in one of the man-made canals. The dock will contain fifty-three of the one hundred thirty-two additional wetslips. The permit carried with it the normal conditions that the permittee not allow liveaboards or "major boat maintenance", conduct a post-construction water quality monitoring program, implement a spill confinement plan, provide a water quality sampling to DER for three years after reaching fifty percent capacity, and install permanent manatee awareness signs.

   
   

3. The existing and proposed wetslips are located in three man-made canals designated as Class III waters connected by a collector canal to Coon Key Channel (Channel) which is a part of the Estero Bay Aquatic Preserve (preserve), a designated Outstanding Florida Water (OFW). The proposed boat slips will be approximately four hundred feet from the preserve. As is relevant here, the preserve lies between Estero Island and the mainland portion of Lee County. All boat traffic generated by the project will exit to the Channel by way of the collector canal. An ocean inlet lies less than one mile away.

   
   

4. The evidence reflects that a small island covered by mangroves lies on the eastern side of the Channel directly across from the collector canal. In addition, mangrove fringes are found on the shoreline of Estero Island to the south of the project area. The shape of Estero Island is uneven, and the Channel winds along the eastern shoreline making a sharp turn in front of the collector canal. In the eastern portion of the Channel is found a sandbar which poses a navigation hazard to boaters. Consequently, all boat traffic in the Channel must use a smaller and deeper channel within the larger Channel in order to avoid running aground.

   B. The Agency's Initial Review of Petitioners' Request

   
   

5. Petitioners' request was coordinated and reviewed by David J. Trimble, an office environmental specialist in DNR's Office of Land Use Planning and Biological Services (office). Before making a recommended preliminary determination, Trimble requested input from DNR's division of marine resources regarding the project's potential adverse impact on area manatees. He also requested input from DNR's bureau of submerged lands and preserves as well as the Department of Environmental Regulation (DER) regarding the project's potential adverse impact on the OFW or Class II waters of the preserve.

   
   

6. In response to Trimble's inquiry, the director of the division of marine resources prepared and sent to Trimble on September 25, 1990, a memorandum which read in material part as follows:

   
   

   The Bay Beach project is located within one mile of an ocean inlet which we consider a good location for new marina development.

   However, watercraft related manatee mortalities have been recorded in the general project vicinity, and additional marina development in this area will, of course, present increased threats to area manatees.

   Because of the magnitude of this project and the fact that manatee protection boat speed zones have not been established in Estero Bay, it is anticipated that the proposed development will have "an adverse impact on an area known to be, or likely to be, frequented by manatees."

   
   

   As a point of information, Lee County has recently proposed new boat speed zones for manatee proection which include some restrictions for Estero Bay. We will also be working with the county on its develop-

   ment of a manatee protection plan which, once approved by the Department and implemented by the county, should go far in establishing adequate protection for area manatees. Until such time as new speed zones and a protection plan are in effect, we will be concerned for the safety of manatees using the Estero Bay system.

   
   

   On October 17, 1990, and after receiving further clarification from Stardial regarding the nature of the project, the same division prepared and sent to Trimble a supplemental memorandum which read in relevant part:

   
   

   . . . we have reevaluated this proposed DRI strictly on the basis of the already permitted slips. If the manatee protection construction conditions and caution signs/informational display requirements included in special condition 10 of DER permit #361665985 are met, significant

   adverse impact on this area, known to be frequented by manatees, is not anticipated from the 130 slips permitted to Mr. Walker.

   
   

   As additional permits will be required to develop the remaining approximately 120 planned slips, we will continue to monitor impacts from this and other nearby marina development and provide manatee-related comments and suggested permit conditions on future phases of the project over time.

   Provided that there is strict adherence to manatee protection conditions included in any future permits, that manatee protection boat speed zones are established in Estero Bay, and that a Department approved manatee protection plan is implemented by Lee County, significant adverse impact on the area, known to be frequented by manatees, is not anticipated from the entire 339 slip project.

   
   

7. In addition to the foregoing comments, Trimble received the following comments prepared by the chief of DER's bureau of wetland resource management on November 5, 1990:

   
   

   We received a permit application for the Royal Pelican Marina on June 22, 1989, and a 5-year permit to add 50 boat slips was issued for the project by our South District office on February 8, 1990. During our review of the permit application, it was determined that the expanded marina would not cause violations of State Water Quality Standards and that the project was not contrary to the public interest pursuant to Section 403.918,

   F.S. In addition, although the marina was near Class II waters and Outstanding Florida Waters (OFW), it was determined that the applicant had provided the Department with reasonable assurance that these waters would not be significantly damaged or degraded.

   
   

   We received a permit application for the Casa Marina project on June 6, 1988, and it was determined on June 8, 1988, that the project was exempt from DER permitting pursuant to Section 17-312.050(1)(h); the application was for a 40-slip condo dock. Casa Marina would not have been entitled to use this exemption if we had determined the project would have caused water quality violations or if the project was within Class II or OFW waters.

8. Finally, Heather S. Stafford, an environmental specialist in DNR's Southwest Florida Aquatic Preserve field office, which is a part of DNR's bureau of submerged lands and preserves, prepared and sent to Trimble on October 19, 1990, a memorandum which contained the results of her investigation. It read in material part as follows:

   
   

   Due to the large number of slips and ultimately boats that are proposed to be included in this project and to the close proximity to the Estero Bay Aquatic Preserve, I have concluded that this project is likely to have a significant adverse impact on the Aquatic Preserve when considered alone or cumulatively along with other similar projects in the area.

   
   

   This finding is based on three factors. Firstly, there would be increased boat traffic and therefore boat wakes. Wakes from boats in the area are currently scouring the peat layer supporting the mangrove shoreline southeast of the project site. This action is creating erosion and loss of mangroves in the Aquatic Preserve. The additional boat traffic would only add to this problem.

   
   

   Secondly, not only is the one collector canal the only way out for the boats, it is the only way for pollutants derived from the additional boats and slips proposed by this project. These being metal-containing compounds, greases, petroleum-derived hydrocarbons and detergents. The release of these substances into the water and sediments is likely to have an adverse impact on the water and sediment quality of the Estero Bay Aquatic Preserve.

   
   

   Lastly, Estero Bay is a shallow estuarine bay full of mangrove islands, oyster bars and seagrass beds. These resources are currently being adversely impacted by prop and fishing line, tackle and other recreational debris being left entangled in the mangroves to pose as a threat to indigenous birds and fauna.

   The additional use of the Bay due to this project will significantly increase this resource damange.

   
   

9. After reviewing and coordinating the above material, Trimble prepared a draft letter which read in pertinent part:

   
   

   This application is for 80 wet slips at Casa Marina and 50 wet slips at Royal Pelican.

   Casa Marina and Royal Pelican are part of a larger condominium development known as Bay Beach on Estero Island in Lee County.

   The Department of Natural Resources is unable to determine that the project will not have an adverse impact on Outstanding Florida Waters or Class II waters and will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees.

   
   

   The letter and various memoranda were then sent to DNR's executive director for his review and signature. The letter was signed by the executive director on November 8, 1990, and sent to the DCA. Because the letter offered a point of entry to contest the findings, petitioners thereafter filed a request for hearing.

   
   

10. The law under which petitioners seek a determination was enacted by the legislature in 1989. Petitioners' request represented only the fifth occasion on which the agency had been requested to make such a determination. Until just before petitioners' project was reviewed, the review was conducted by DNR's division of marine resources, and that division issued the determination letter. In addition, if the division made a favorable determination on the manatee issue, it used language similar to the following: "the proposed project is not likely to have a significant adverse impact on manatees in this area". However, in the fall of 1990 responsibility for coordinating the review was transferred to the office of land use planning and biological services and the determination letter was thereafter issued over the executive director's signature. Finally, on all subsequent determinations, DNR opted to track the language in the statute rather than using the wording contained in prior determinations. Even so, the same criteria were used in making manatee evaluations both before and after the change in policy.

    
    

11. During the discovery process, and more specifically on June 5, 1991, petitioners took the deposition of Trimble, who advised them that, based upon the October 17, 1990 memorandum referred to in finding of fact 10, he assumed that the manatee issue was "resolved" in petitioners' favor. However, when the parties were preparing a prehearing stipulation on June 7 to be filed at final hearing on June 11, petitioners learned that DNR intended to take the position at hearing that the project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. Notwithstanding this newly discovered revelation, except for lodging an objection at hearing, petitioners did not request a continuance or any special discovery measures in order to respond to what they perceived to be a newly raised issue.

    
    

    1. Impact on Manatees?

       
       

12. In making a determination under the applicable statute, DNR is required to determine whether "the marina is located so that it . . . will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." In this regard, testimony by DNR witnesses established without contradiction that during the years 1974 through 1990 Lee County recorded the second highest number of manatee deaths (239) of any county in the State. During that same time period, watercraft alone caused at least forty of these deaths. Although the closest manatee death to the Bay Beach project in 1990 occurred several miles north of the project site, at least twenty manatee deaths caused by watercraft collisions

    have been recorded within a five mile radius of the project since 1974. Thus, despite the fact that both parties agree that the project is in a good location for a new marina development, manatees are a legitimate concern.

    
    

13. Lee County has adopted Ordinance No. 90-51, which is known as the Lee County Vessel Control and Water Safety Ordinance. It basically requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, this means that boaters in the Channel who ventured closer than five hundred feet to the seawall which fronts a part of the Island's shoreline or a dock located several hundred yards south of the collector canal would be obliged to travel no faster than idle speed, no wake, in those areas. The Florida Marine Patrol (FMP), while possessing the authority to enforce the county ordinance, does not normally do so for at least two reasons. First, there is no way for a boater to precisely determine where the five hundred foot distance from a structure begins. Indeed, a veteran FMP field lieutenant who frequently uses the Channel waters acknowledged that he has considerable difficulty in making that determination. Secondly, although there are some small posted signs around the collector canal entrance, none are permitted by DNR pursuant to Chapter 16N-23, Florida Administrative Code. Unless a waterbody has DNR permitted signs, the FMP will not normally enforce locally imposed speed limitations. Moreover, the size and placement of the signs makes it difficult for boaters in the Channel to observe and obey them. It should also be noted that there is no evidence to support a finding that the Lee County Sheriff's Office, or other local law enforcement officials, strictly enforce this ordinance. In fact, testimony at hearing established that boaters frequently travel in the Channel at above idle speeds, and even "full plane", and do not go down to idle speed until they enter the collector canal.

    
    

14. The parties have stipulated that manatees now frequent the Channel. This factual stipulation was corroborated by the testimony of several witnesses at hearing. This is noteworthy since all boats moored at Bay Beach must use the Channel in order to gain access to outside waters.

    
    

15. There is a strong correlation between boat traffic and manatee deaths, especially where boats operate in excess of idle speed and are of a size of twenty feet or more. This is because manatees are slow swimmers and have limited ability to avoid rapidly moving vessels. Thus, absent sufficient safeguards to ensure that boats operate only at idle speed, the influx of up to one hundred thirty-two additional boats, many of which will be twenty feet or longer, into the waters adjacent to Bay Beach may have an adverse impact on manatees. This is true even though portions of the Channel have depths in excess of four feet, which is considered the minimum safe water depth to offer a "very high level of protection" to manatees. Since there is no evidence on which to base a finding that the local ordinance will be strictly enforced, DNR cannot reasonably determine that the project will not have an adverse impact on manatees.

    
    

    1. Water Quality

       
       

16. In order to render a favorable determination for petitioners' project, DNR must also determine that "the marina is located so that it will not adversely impact Outstanding Florida Waters or Class II waters". These waters begin in the Channel just outside the collector canal. The only expert testimony on the issue of water quality was offered by petitioners' expert,

    Thomas H. Fraser, III. The DNR employee who conducted a field investigation and authored the October 19, 1990 memorandum on the subject was not tendered as an expert and thus her testimony has been treated as lay testimony.

    
    

17. According to Fraser, with one exception, all state water quality standards are now being met in both the canal system and the adjacent Class II waters. The one exception is oils and greases, which Fraser attributes to storm water runoff and the operation of the Fish Tale Marina, a commercial boat marina that is located in the project area. Although the witness acknowledged that additional boat traffic caused by the project could contribute further oils and greases to the waters, he did not expect these contaminants to increase the level now found in the Class II waters. Further, Fraser concluded that, given the conditions imposed by DER, and the fact that most boats occupying the boat slips are on boat lifts, he did not expect the additional boats to cause any adverse impact on the waters. This testimony was not credibly contradicted.

    
    

18. As noted above, DNR offered only lay testimony on this issue. As reflected in that witness' testimony, the agency is concerned with an increase in pollutants caused by more boat traffic and an adverse effect on the water resources, namely, oyster and seagrass beds. The latter impact would allegedly occur when boat propellors scrape the beds. However, this lay testimony has not been accorded the weight given to Fraser's testimony and has been disregarded.

    
    

    1. Shoreline Erosion

       
       

19. As a part of its review of the impact on Class II waters, DNR also considered the effect of the additional boats on shoreline erosion. There is evidence that the peat layer which supports the mangrove fringes now found on the eastern shoreline of Estero Island has been receding over time. However, Fraser noted that the sea level has been gradually rising about two millimeters per year over the last one hundred years and this has caused the mangrove shorelines to recede since they cannot vegetate in the higher elevations behind the shoreline. Moreover, the upland drainage has dramatically increased due to upland development and this has impacted the long term productivity of the mangrove shoreline. In addition, as the sandbar in the center of the Channel has enlarged over the years, velocities of the outgoing tide along the southeast mangrove shorelines have increased, adding to the natural erosion of the mangrove peat layer. The witness conceded that boat wakes have also contributed to the shoreline erosion but classified that effect as less important than the effect of the rising tides. Thus, any impact due to boat wakes will be secondary to the impacts caused by rising tides and increased upland drainage.

    
    

    1. Prior Determinations

    
    

20. As noted in finding of fact 14, DNR has issued at least four other determination letters, all of which were favorable. They include requests for determinations on projects in Nassau, Palm Beach and Lee Counties. Although a favorable determination was issued for a project site approximately six miles north of Bay Beach, there was no showing that this project, or the ones in the other counties, were identical in all respects to the Bay Beach project or that the factors present in this case and considered by DNR as to manatee, shoreline erosion and water quality issues were the same. Therefore, those determinations are not relevant to this proceeding.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

22. As the persons seeking a determination in this cause, petitioners bear the burden of showing their entitlement to a favorable determination by the preponderance of the evidence. Fla. Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

    
    

23. Initially, a brief discussion is necessary regarding petitioners' contention that once DNR issued its proposed agency action, it was precluded from adding further grounds for denying the request. First, it has long been recognized that section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily, McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979), and thus the agency's letter of November 8, 1990, never became "final agency action" by virtue of petitioners' request for a section 120.57 hearing. Accordingly, DNR is not "locked into the reasons given in its letter of intent to deny", or the rationale of its staff which underpinned that preliminary decision.

    DeCarion v. Department of Environmental Regulation, 445 So.2d 619, 620 (Fla. 1st DCA 1984). Even so, the agency does not have unrestrained authority to inject new issues into the proceeding. Rather, when the agency changes its position after the proposed agency action has been issued, it is necessary to determine whether that change constitutes a due process problem of notice to petitioners. See, e. g., Hopwood v. State Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981). In this case, the proposed agency action can be fairly construed to mean that petitioners did not satisfy any of the statutory criteria. However, as late as the week before final hearing petitioners were led to believe that no issue existed as to manatees. Two days later, and while preparing a prehearing stipulation, petitioners learned of a change in the agency's position and that DNR was still concerned with the project's possible adverse impact on manatees. Even so, petitioners did not request a continuance, contend that they were unable to adequately respond to this issue, or demonstate how they were prejudiced by this newly raised issue. Therefore, it is concluded that no due process violation occurred. Hopwood at 1299; Key Biscayne Council

    v. State of Fla., Department of Natural Resources, 579 So.2d 293, 294-95 (Fla. 3rd DCA 1991); Manatee County v. State of Fla., Department of Environmental Regulation, 429 So.2d 360, 362 (Fla. 1st DCA 1983).

    
    

24. Subsection 380.0651(3)(e)1.c., Florida Statutes (1989) is controlling in this proceeding and provides as follows:

    
    

    (3) The following statewide guidelines and standards shall be applied in the manner described in subsection 380.06(2) to determine whether the following developments shall be required to undergo development of regional impact review:

    * * *

    (e) Port facilities. - The proposed construction of any waterport or marina is required to undergo development-of-regional- impact review, except one designed for:

    * * *

    (c) The wet or dry storage or mooring of fewer than 400 watercraft used exclusively for sport, pleasure, or commercial fishing with all necessary approvals pursuant to chapters 253, 373, and 403 and located outside Outstanding Florida Waters and Class II waters.

    
    

    In addition to the foregoing, the Department of Natural Resources must determine in writing that the marina is located so that it will not adversely impact Outstanding Florida Waters or Class II waters and will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees. The Department of Natural Resources determination shall constitute final agency action pursuant to chapter 120. (Emphasis added)

    * * *

    
    

25. The foregoing statute requires that, upon request, DNR make a determination that the location of a marina will not cause certain adverse environmental impacts. This means that the agency must have a reasonable degree of certainty, either obtained through information supplied by the applicant or by DNR staff investigation, that the location of a marina will not cause the cited adverse impacts. Based upon the evidence of record, it is concluded that petitioners have failed to sustain their burden of showing that the project will not "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Without this assurance, and given the demonstrated potential for harm to manatees, it is concluded that a favorable determination will not lie. This being so, the request for a favorable determination under the foregoing statute must be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent enter a final order confirming its earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes.

RECOMMENDED this 16th day of August 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.

ENDNOTES

1/ Although the prehearing stipulation refers to both 132 and 133 boat slips, and petitioners used the number 130 at hearing, the undersigned has used 132 throughout this Recommended Order.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-8051

Petitioners:

1-4. Partially adopted in finding of fact 1. 5-6. Partially adopted in finding of fact 7.

1. Partially adopted in finding of fact 6.

2. Partially adopted in findings of fact 3 and 9. 9-12. Partially adopted in finding of fact 10.

1. Partially adopted in finding of fact 12.

2. Partially adopted in finding of fact 11.

3. Partially adopted in finding of fact 13. 16-17. Partially adopted in finding of fact 21.

1. Partially adopted in finding of fact 6.

2. Partially adopted in finding of fact 21.

3. Partially adopted in finding of fact 22. 21-24. Rejected as being unnecessary.

25-26. Partially adopted in finding of fact 23. 27-28. Partially adopted in finding of fact 17.

1. Covered in preliminary statement.

2. Partially adopted in finding of fact 18. 31-32. Rejected as being unnecessary.

1. Partially adopted in finding of fact 16.

2. Rejected as being irrelevant.

3. Partially adopted in finding of fact 15.

4. Rejected as being unnecessary.

5. Rejected as not being supported by the evidence.

Respondent:

1. Partially adopted in finding of fact 3. 2-3. Partially adopted in finding of fact 4.

1. Partially adopted in finding of fact 14.

2. Partially adopted in findings of fact 14 and 24. 6-7. Partially adopted in finding of fact 14.

8. Partially adopted in finding of fact 24. 9-10. Partially adopted in finding of fact 13.

1. Partially adopted in finding of fact 2.

2. Partially adopted in finding of fact 6.

3. Partially adopted in finding of fact 3.

4. Partially adopted in finding of fact 9.

5. Partially adopted in finding of fact 18. 16-17. Partially adopted in finding of fact 16.

1. Partially adopted in findings of fact 17 and 19.

2. Partially adopted in finding of fact 19.

3. Partially adopted in finding of fact 7.

4. Rejected as being unnecessary.

5. Partially adopted in findings of fact 5 and 7.

6. Rejected as being unnecessary.

24-25. Partially adopted in finding of fact 22.

1. Partially adopted in finding of fact 12.

2. Partially adopted in finding of fact 23.

3. Rejected as being unnecessary.

4. Partially adopted in finding of fact 24.

5. Partially adopted in finding of fact 23.

6. Rejected as being unnecessary.

32-33. Partially adopted in finding of fact 17.

Note - Where proposed findings have been partially adopted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law.

COPIES FURNISHED:

Mark A. Ebelini, Esquire 1625 Hendry Street

Suite 301

Fort Myers, FL 33901

Debra W. Schiro, Esquire Kelly Brewton, Esquire

3900 Commonwealth Blvd., MS-35 Tallahassee, FL 32399-3000

Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-3000

Kenneth J. Plante, Esquire 3900 Commonwealth Blvd., MS-10 Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES

AND

BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST

CASA MARINA DEVELOPMENT, INC., ROYAL PELICAN DEVELOPMENT, INC. and STARDIAL INVESTMENTS CO.,

Petitioners, DOAH CASE NO.90-08051 DNR CASE NO. 90-0I38MR

vs.

STATE OF FLQRIDA, DEPARTMENT OF NATURAL RESOURCES,

Respondent.

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FINAL ORDER

THIS CAUSE came before the Governor and Members Of the Cabinet of the State of Florida, sitting as the head of the Department of Natural Resources and as the Board of Trustees of the Internal Improvement Trust Fund, at a regularly scheduled Cabinet Meeting on October 22, 1991, for consideration and final agency action.

The Hearing Officer assigned by the Division of Administrative Hearings in the above-styled case served the Recommended Order on the Executive Director of the Department of Natural Resources on August 19, 1991 and a copy of which is attached as Exhibit A. Pursuant to Rules 16-5.001 and 18-7.001, Florida Administrative Code, each party was given twenty-five (25) days from the date of service of the Recommended Order to submit written exceptions thereto, including legal memoranda and proposed substituted orders. On September 10, 1991, Petitioner filed its exceptions to the findings of fact and conclusions of law to the Recommended Order. (Exhibit B) On the same day Respondent also filed

an exception to a finding of fact to the Recommended Order. (Exhibit C) On September 23, 1991, Respondent filed its reply memorandum to Petitioners' exceptions. (Exhibit D)

Having considered the Recommended Order, the complete record in this matter, and the argument of the parties, and being otherwise fully advised in the premises, the Governor and members of the Cabinet make the following findings and conclusions.

RULINGS ON EXCEPTIONS TO FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. PETITIONERS' EXCEPTIONS

   
   

   1. In its Exception No. 1., Petitioners take exception to the Hearing Officer's determination that there was no evidence in the record to support a finding that Lee County Sheriff's Office, or any other local law enforcement officials strictly enforce Lee County Ordinance No. 90-51. Petitioners' exception is not supported by the record.

      
      

      Lee County Ordinance No. 90-51, requires that a vessel must proceed at idle speed, no wake, within five hundred feet of a water oriented structure, such as a seawall or dock. If enforced, the ordinance would require that boaters on the channel who venture closer than five hundred feet to the seawall which fronts a part of the island's shoreline or a dock located several hundred yards south of the collector canal, which is the site of Petitioners' proposed project, be obliged to travel no faster than idle speed, no wake in those areas.

      
      

      The Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced was based on the testimony of Lt. Graylish of the Florida Marine Patrol. Lt. Graylish appeared as a witness for Respondent and testified as to his opinion as a law enforcement officer on the impact of Lee County Vessel Control Ordinance No. 90-51 on vessel speeds in Estero Bay.

      
      

      During Lt. Graylish's direct examination when asked whether the Marine Patrol enforced the ordinance he replied:

      
      

      Well, we have the power to do it. The hardest problem for us is what in fact is that 500 foot distance. It's really hard on the water to come up with that, and then we've got a lot of transient traffic that goes through that area from out of state during season and part-time residents, and it's very difficult to enforce that when you don't have an actual sign placement indicating what in fact the condition is. [Tr. p. 118, Ins. 15-24]

      
      

      The lieutenant's testimony was uncontroverted. Petitioners produced no competent substantial evidence to refute Lt. Graylish's testimony. Likewise in its exceptions, Petitioners have failed to present competent substantial evidence to demonstrate why the Hearing Officer's determination that Ordinance No. 90-51 was not strictly enforced should be rejected. Accordingly, Petitioners' Exception No. 1. is therefore rejected as being contrary to the evidence presented.

      
      

   2. In its Exception No. 2, Petitioners object to the Hearing Officer's determination that the parties stipulated that manatees now frequent the channel

      (i.e., Coon Key Pass). Petitioners state that the parties only stipulated that "Estero Bay is an area that is, at least, frequented by manatees" and cites to the Transcript in support of its position. [See Petitioners' Exceptions] However, a review of the statement in the record which Petitioners rely on and which was made by Petitioners' own attorney at the hearing demonstrates that the Hearing Officer was correct in finding that the parties stipulated that manatees frequent the channel. In pertinent part the passage states:

      
      

      At this time I would like to stipulate to one thing that was omitted in here [i e., prehearing

      stipulation], is that we do stipulate that the areas are Outstanding Florida Waters and Class II waters, Estero Bay, and they are waters that are at least frequented by manatees . . . (emphasis added)[Tr.

      p. 8, Ins. 18-24]

      
      

      The Hearing Officer's finding that the parties stipulated that manatees now frequent the channel, which is part of Estero Bay, is consistent with the parties' stipulation. The exception is therefore rejected as unnecessary.

      
      

   3. In its Exception No. 3, Petitioners take exception to the Hearing Officer's finding that since there was no evidence that Ordinance No. 90-51 would be strictly enforced, DNR could not reasonably determine that Petitioners' project would not have an adverse impact on manatees.

      
      

      The issue in this case was whether Petitioners were entitled to a favorable determination under Chapter 380, Florida Statutes, that their proposed project was located so that it would not adversely impact Outstanding Florida Waters or Class II waters an would not contribute boat traffic in a manner that would adversely impact an area known to be, or likely to be, frequented by manatees. It was Petitioners' burden to show by a preponderance of the evidence that they were entitled to a favorable determination. It was therefore incumbent upon Petitioners to present competent evidence regarding the enforcement of Ordinance No. 90-51. This Petitioners did not do. Therefore, Petitioners' Exception No.

      3 is rejected as either irrelevant or not being based on competent substantial evidence.

      
      

   4. In its Exception No. 4, Petitioners allege that Respondent's committed two discovery violations. These allegations are beyond the scope of what is permitted under the rules which deal with exceptions to recommended orders; however they will be addressed.

      
      

      Petitioners claim they were prejudiced by improper testimony from the Respondent's expert witnesses, Pat Rose and Kipp Frohlich. Petitioners state that these witnesses "allegedly re-examine Petitioners' project area on the afternoon prior to the hearing and alleged the discovery of new observations and conclusions at the hearings." [See Petitioners' Exceptions] Petitioners claim that this alleged re-examination precluded any opportunity for discovery and that therefore, "no testimony relating to this site visit should have been admitted into the record." However, Petitioners raised no such objection at the hearing and by not doing so have waived any right to do so now. Furthermore, there is nothing in the Florida Rules of Civil Procedure that would preclude an expert witness from engaging in a review of information to be relied on at the hearing prior to the hearing. Additionally, for clarification only, it should be noted that there is no evidence in the record which would have led Petitioner to believe that Pat Rose visited the site prior to the hearing.

      In Exception No. 4, Petitioner further alleged that the Hearing Officer should have disallowed the testimony of Lt. Graylish, because his name "first appeared on the prehearing stipulation (not signed by Petitioners) approximately

      48 hours before the hearing . . . ." However, Petitioners' did not object at the hearing to the testimony of Lt. Graylish and furthermore, stated on the record in reference to signing the prehearing stipulation:

      
      

      due to our, I guess you would say our

      geographic differences, the prehearing stipulation was submitted . . . without my signature; and at this time I would like to on the record confirm that I stipulate to that prehearinq stipulation that was jointly prepared and finally submitted by the Department. (emphasis added) [Tr. p. 4, Ins. 21-

      25]

      
      

      In addition to having stipulated to Respondent's witnesses, which included Lt. Graylish, Petitioners had raised this very objection prior to the hearing and the Hearing Officer had conducted a telephonic hearing on the matter. The Hearing Officer ruled that the witness would be allowed to testify at the hearing subject to Petitioners' objections at that time. A review of the record of the hearing indicates that Petitioners made no further objections to the lieutenant's testimony. Exceptions as to alleged discovery violations are improper pursuant to the rules and in this case there is no competent substantial evidence to demonstrate the existence of any discovery violations.

      Exception No. 4 is therefore rejected as being improper.

      
      

   5. Finally, at Exception No. 5, Petitioners take exception to the Hearing Officer's application of law to the findings of fact to support a determination that Petitioners failed to sustain their burden of demonstrating that their proposed project would riot "contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees." Petitioners allegation that this conclusion be rejected is based upon Petitioners' argument, discussed above, that the Hearing Officer erred in finding that Ordinance No. 90-51 was not strictly enforced. As stated in Paragraphs Nos. 1. and 3., any such rejection of the Hearing Officer's finding in this regard is unsupported by competent substantial evidence.

      
      

      Petitioners allege that the Hearing Officer's "sole conclusion of possible manatee impacts from this project was based on what he determined to be a lack of evidence that Ordinance No. 90-51 would be strictly enforced. Petitioners have narrowly construed the Hearing Officer's ruling. There is ample evidence in the record to support the Hearing Officer's conclusion that the Petitioners had not met their burden. In fact, the Recommended Order demonstrates that the ruling was also based on competent substantial evidence presented by Respondent that this proposed project demonstrated a potential for harm to manatees. In that regard, the Hearing Officer's conclusion was based on testimony from both Pat Rose and Kipp Frohlich. It was their testimony which led the Hearing Officer to conclude that a "favorable determination for Petitioners would not lie." The record is replete with evidence the Hearing Officer could have reasonably relied upon to conclude that Petitioners failed to sustain their burden of proof. [See Tr. p. 118, Ins. 6-9; p. 156 p. 1; p. 158, Ins. 4-6; p.

      158. In. 9; p. 159, In.18; p. 176, Ins. 20-23; ; p. 218, Ins. 20-24; p. 219,

      In. 40p. 316, Ins. 22-23; DNR Exh. 17J Accordingly, Petitioners' exceptions to Conclusion of Law No. 5., is rejected as being contrary to Florida law and the evidence presented.

      RESPONDENT' S EXCEPTIONS

      
      

   6. Respondent alleges that Finding of Fact No. 15., should be rejected in its entirety inasmuch as it is not supported by competent substantial evidence. At finding of fact No. 15, the Hearing Officer implies that the Petitioners were "somehow surprised" on June 7, 1991, while the parties were preparing the Prehearing Stipulation to be filed at hearing on June Il, 1991, to learn that DNR intended to take the position at hearing that the proposed project would likely contribute boat traffic in a manner that would adversely impact an area frequented by manatees. In support of this finding the Hearing Officer refers to a comment made by DNR employee David Trimble at his June 5, 1990, deposition, during which he advised Petitioners that based upon the October 17, 1990 memorandum from the Division of Marine Resources he assumed that the manatee issue was "resolved" in Petitioners' favor. However, a review of the record reveals that at no time subsequent to November 8, 1990 or the date on which the unfavorable letter of determination was issued, could Petitioners reasonably claim they believed the issue regarding manatees was resolved. Accordingly, the Hearing Officer's finding in this regard is not based on competent substantial evidence and is rejected.

      
      

      At his deposition Mr. Trimble was asked who was responsible for making the final determination decision, to which he replied:

      
      

      1. I evaluate them and make a staff recommendation

to my superiors. (emphasis added) [Tr. 22, Ins. 24-25]

Q. So you go with your feeling - from what the letters say and -

A. Not from my feeling, I go with what the letters say. [Tr. p. 23, Ins. 8-11]

Furthermore, Trimble's statement at the deposition that he believed the manatee issue was resolved was given only after Petitioners specifically asked Mr. Trimble his opinion on the matter. Furthermore, Trimble was qualified to give only his opinion as to whether the manatee issue was resolved, not the agency's position which was memorialized in the November 8, 1991, letter of determination. Petitioners' claim that they believed the manatee issue was resolved and the Hearing Officer's subsequent finding that Petitioners' claim was meritious can not be supported on the basis of Trimble's answer to the following question:

Q. Was, in your opinion - - and this is your opinion as the reviewer of the request - - was the manatee issue resolved . . . (emphasis added) [Tr. p. 26, Ins. 8-10]

Further, the letter that was issued under the Executive Director's signature did not indicate that the manatee issue was resolved, quite the contrary. In fact, the Prehearing Stipulation at page 17, stipulated to by both parties after, the deposition of Trimble listed the following disputed issue for determination at the hearing:

2. Whether the DNR correctly determined that the proposed 132 wetslips in conjunction with the existing 161 slips, will contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees.

In order to find that Petitioners were somehow surprised by this "newly discovered revelation" (i.e., that manatees were going to be an issue at hearing) the Hearing Officer improperly attributed more weight to the deposition testimony of Trimble thanit was due. Trimble was merely the conduit through which information on the manatee issue from the Division of Marine Resources passed. As he himself stated, he was the reviewer of the information

- - he was not the final decisionmaker. Once having reviewed the material sent to him from the other divisions, he merely drafted the unfavorable letter of determination for the Executive Director's consideration. The Executive Director then reviewed the material and issued the letter of determination under his signature.

FINDINGS OF FACT

1. The findings of fact contained in the Recommended Order are approved, adopted and incorporated herein by reference except for finding of fact No. 15, which is rejected in its entirety as not being supported by the evidence.

   
   

2. There is competent substantial evidence in the record to support the findings of fact except for finding of fact No. 15, which is not supported by competent substantial evidence and is rejected.

   
   

   CONCLUSIONS OF LAW

   
   

3. The conclusions of law contained in the Recommended Order are approved and adopted in toto and are incorporated herein by reference.

   
   

4. The recommendation of the Hearing Officer is adopted in toto and is incorporated herein.

ORDER

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

ORDERED AND ADJUDGED as follows:

Department of Natural Resources enter a final order confirming its' earlier determination of November 8, 1990, under Subsection 380.0651(3)(e)1.c., Florida Statutes, that it was unable to determine that Petitioners' proposed project was located so that it will not adversely impact Outstanding Florida Waters or Class II waters and will not contribute boat traffic in a manner that will have an adverse impact on an area known to be, or likely to be, frequented by manatees.

Petitioners are hereby advised of their right to seek judicial review of this Final Order pursuant to Section 120.68, Florida Statutes, and Rules 9.030(b)(c) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Department Clerk, Department of Natural Resources, Douglas Building, 3900 Commonwealth Boulevard, MS - 35, Tallahassee, Florida 32399-3000, and with the appropriate District Court of Appeal within thirty (30) days of the filing of this Final Order with the Department Clerk. A Notice of Appeal filed with the District Court of Appeal must be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

DONE AND ORDERED this 31 day of October 1991, in Tallahassee, Florida.

Acting Executive Director of the Department of Natural Resources and designated agent for the Board of Trustees of the Fund Internal Improvement

Copies furnished to:

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

MARK A. EBELINI, ESQUIRE

Humpfrey & Knott 1625 Hendry Street

Fort Myers, Florida 33901

DEBRA W. SCHIRO

Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard, MS-35 Tallahassee, Florida 32399-3000

Docket for Case No: 90-008051

Orders for Case No: 90-008051