STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REGENCY TOWERS CONDOMINIUM, ) OWNERS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5826

) DESTIN ARCHITECTURAL GROUP, INC., ) MAJOR DEVELOPMENT, LTD., and ) JIM ADAMS, AND DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Following notice to all parties, Don W. Davis, a Hearing Officer for the Division of Administrative Hearings, held a final hearing in the above-styled case on November 29, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John O. Williams

Attorney at Law

Lindsey & Williams, P.A. Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

James E. Alexander Attorney at Law

No. 323, Stanford Pointe 2401 Stanford Road

Panama City, Florida 32405

For Respondent Dana M. Wiehle

Department of Assistant General Counsel Environmental Department of Environmental Protection Protection: 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Other Thomas G. Tomasello Respondents: Attorney At Law

Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C

Post Office Box 6507 Tallahassee, Florida 32314-6507

STATEMENT OF THE ISSUE

The issue is whether Respondent, Department of Environmental Protection ("DEP"), should grant the applicant, Pelican Resort Developments, Inc., a coastal construction control line ("CCCL") permit. The applicant seeks to construct a condominium project in Destin, Florida. Portions of the project are seaward of the CCCL for Okaloosa County.

PRELIMINARY STATEMENT

The Petitioner requested a formal administrative hearing to contest the preliminary decision of Respondent DEP, to issue to Respondents, Pelican Resort Developments, Inc., Jim Adams, Destin Architectural Group, Inc., and Major Development, Ltd., ("Respondents"), coastal construction control line permit

OK

During the hearing, Respondents presented five witnesses, moved into evidence twenty-six exhibits, and presented the testimony of an additional witness in the form of a deposition transcript. DEP presented the same witnesses as Respondents, but no exhibits. Petitioner presented one witness and moved seven exhibits into evidence.

A transcript of the proceedings was filed with the Division of Administrative Hearings on December 2, 1994. Proposed findings of fact were filed by all the parties, except DEP. The proposed findings are addressed in the appendix to this Recommended Order.

FINDINGS OF FACT

1. On March 28, 1994, DAG Architects and Pelican Resort Developments, Inc., as agents for Major Development Ltd., filed an application pursuant to Section 161.053, Florida Statutes with DEP for a coastal construction control line ("CCCL") permit in order to construct a condominium project, portions of which would be seaward of the coastal construction control for Okaloosa County, Florida.

   
   

2. The application was assigned DEP number OK-115.

   
   

3. The condominium project to be developed pursuant to Permit OK-115 is known as Pelican Beach Resort, and is being developed by Pelican Resort Developments, Inc.,

   
   

4. The Pelican Beach Resort project includes a 19-story building with 340 condominium units, two swimming pools, 595 parking spaces, and boardwalks to the beach.

   
   

5. On August 13, 1993, Pelican Resort Developments, Inc., entered into a contract with Major Development, Ltd., to purchase from Major Development, Ltd., the property on which the Pelican Beach Resort condominium project is to be constructed.

   
   

6. On September 8, 1994, DEP determined to grant the March 8, 1994, CCCL application for permit OK-115 subject to 10 special permit conditions. Issuance of that "Final Order" constituted intended final agency action by DEP.

   
   

7. Special Permit Condition 3 required the permittee to provide DEP with written evidence that a public notice regarding DEP's approval of permit

   application number OK-115 was published in a newspaper. Before publication, a draft of the notice was to be provided to DEP for review and approval.

   
   

8. The permittee provided DEP with a draft public notice. DEP approved the draft and the notice was published in the Northwest Florida Daily News, which is published daily. DEP was provided with proof of publication of the notice by the permittee. The public notice advised substantially affected persons of their right to request an administrative hearing in accordance with the provisions of Section 120.57, Florida Statutes, by filing such a request with the DEP Office of General Counsel.

   
   

9. During the processing of application number OK-115, DEP received approximately 100 letters from neighboring property owners within the Regency Towers condominium, located adjacent to the project site, objecting to the CCCL permit for the Pelican Beach Resort condominium project. Adjacent property owners were well aware of the proposed Pelican Beach Resort condominium project as the CCCL application for it was processed by DEP.

   
   

10. On September 21, 1994, Petitioner, Regency Towers Condominium Owners Association, Inc., filed a Request for Formal Administrative Hearing with DEP requesting that DEP withdraw its issuance of permit OK-115 for the Pelican Beach Resort condominium project.

    
    

11. The members of the Regency Towers Condominium Owners Association, Inc., are the record owners of apartments within the Regency Towers condominium. The owners of the condominium apartments own their apartments plus an undivided interest in the common property. Regency Towers Condominium Owners Association, Inc., does not own any real property within the Regency Towers condominium.

    
    

12. When the CCCL application was filed on March 28, 1994, Major Development, Ltd., was the owner of the property where the proposed condominium project is expected to be developed. That entity continued to own the property until October 13, 1994.

    
    

13. On October 13, 1994, Pelican Resort Developments, Inc., which served as an agent for permit application OK-115, purchased from Major Development, Ltd., 10.9 acres of the property on which the Pelican Beach Resort condominium project is to be constructed. The land purchased by Pelican Resort Developments, Inc., includes all land seaward of the CCCL which is at issue in this proceeding and permit OK-115. Pelican Resort Developments, Inc., received a warranty deed for the property from Major Development, Ltd., and obtained title insurance from First American Title Insurance Company for the property.

    
    

14. On November 8, 1994, Pelican Resort Developments, Inc., as the new owner of the property seaward of the CCCL subject to permit OK-115, filed a Permit Transfer Agreement with DEP, and as evidence of its ownership of the property, it provided DEP with a recorded copy of its warranty deed to the property along with the Permit Transfer Agreement.

    
    

15. On November 8, 1994, DEP approved Pelican Resort Developments, Inc.'s request to transfer permit OK-115 from Major Development, Ltd., to Pelican Resort Developments, Inc.

    
    

16. DEP's rules authorize the transfer of CCCL permits to new property owners. Rule 16B-33.016(1), Florida Administrative Code. Such transfers are not uncommon.

    CCCL PERMIT APPROVAL CRITERIA The CCCL

17. The CCCL is a jurisdictional line, it is not a line of prohibition. DEP routinely authorizes the construction of structures seaward of the CCCL, and issues approximately 1,500 to 1,600 permits per year authorizing such construction.

    
    

    Evidence of Local Approval

    
    

18. The Pelican Beach Resort project subject to permit OK

    the City of Destin. Therefore, written evidence provided by the City of Destin was given to DEP by the applicant for permit OK-115 showing that the proposed Pelican Beach Resort condominium project does not contravene local setback requirements, or zoning, or building codes.

    
    

    Evidence of Ownership

    
    

19. During the processing of application OK-115, the applicant provided DEP with sufficient evidence that Major Development, Ltd., owned the property for which permit OK-115 was requested.

    
    

20. From the time application OK-115 was filed with DEP on March 8, 1994, until October 13, 1994, Major Development, Ltd., was the owner of the property for which permit OK-115 was requested.

    
    

21. On October 13, 1994, Pelican Resort Developments, Inc., purchased from Major Development, Ltd., the property for which permit OK-115 was requested.

    
    

22. Pelican Resort Developments, Inc., has provided DEP with sufficient evidence of its ownership of the property for which permit OK-115 is requested.

    
    

23. First American Title Insurance Company has insured Pelican Resort Developments, Inc.'s interest in that property as fee simple ownership. It is this property for which permit OK-115 was requested and which will be developed pursuant to permit OK-115.

    
    

    Public Access

    
    

24. Construction of the Pelican Beach Resort condominium project pursuant to permit OK-115 will not interfere with public access along the beach.

    
    

25. The portion of the beach used for public recreation is seaward of the primary dune and is of substantial width. The structures constituting the Pelican Beach Resort condominium project are substantially landward of the primary dune.

    
    

26. By stipulation of the parties, the Pelican Beach Resort condominium project will not interfere with public access along the beach.

    
    

    Sea Turtles

    
    

27. As admitted by the parties, reasonable assurance has been provided in relation to the Pelican Resort Developments, Inc., condominium project that nesting sea turtles and hatchlings will be protected. Further, permit OK-115 contains adequate conditions to provide protection to nesting sea turtles and

    hatchlings and their habitat. The parties have also stipulated that the project will not have an adverse impact on sea turtles, hatchlings, or their habitat.

    
    

    Structural Requirements

    
    

28. The parties have stipulated that the proposed structures within the Pelican Beach Resort project comply with all applicable structural requirements, which includes those in Chapter 16B-33, Florida Administrative Code, and Chapter 161, Florida Statutes.

    
    

    Compliance with Siting Criteria An accreting shoreline

29. The shoreline adjacent to the proposed Pelican Beach Resort condominium project is stable and in an accretional mode. The shoreline is propagating seaward over time, and the beach is accreting.

    
    

30. Between 1985 and 1990, the beach adjacent to the proposed Pelican Beach Resort condominium project accreted at a rate of ten feet per year.

    
    

31. The shoreline for a distance of 13,000 feet to the east of East Pass is accreting. The proposed Pelican Beach Resort condominium project is approximately 10,000 feet east of East Pass.

    
    

    Seasonal high water line

    
    

32. The elevation of the seasonal high water line ("SHWL") for the site of the proposed Pelican Beach Resort condominium project is approximately 3.3 feet.

    
    

33. All major structures within the proposed Pelican Beach Resort condominium project are several hundred feet landward of the seasonal high water line.

    
    

34. Since the shoreline is accreting, it can be anticipated that the SHWL 30-years hence will be seaward of its current location. Despite the fact that the shoreline adjacent to the site of the proposed Pelican Beach Resort condominium project is accreting, DEP has assigned an erosion rate of one foot per year for the shoreline.

    
    

35. Using the DEP erosion rate of minus one foot per year, the SHWL in 30- years will only be 30 feet more landward than where it currently is. All the major structures within the proposed Pelican Beach Resort condominium project will be at least 230 feet landward of the SHWL in 30-years.

    
    

36. However, since the shoreline in the area of the site is accreting, the SHWL will actually move seaward of where it is today. The proposed Pelican Beach Resort condominium structure and all structures within the project except for minor structures will be landward of the seasonal high water line within thirty years of November, 1994.

    
    

    Vegetation

    
    

37. Structures constituting the proposed Pelican Beach Resort condominium project are substantially landward of the vegetation line at the site, and DEP typically approves construction projects that are closer to the vegetation line than Pelican Beach Resort.

38. Pelican Resort Developments, Inc., as the permittee, is required by special permit condition number 4 to implement a detailed dune restoration plan. Dune restoration will include the construction of a coastal barrier dune with a minimum crest elevation of + 15 feet NGVD, the planting of vegetation -- sea oats, railroad vine, cordgrass and Golden Aster -- on the dune in staggered rows 18" apart, and the long term maintenance of the dune and vegetation. The restored dune shall be a preservation area where no construction is allowed except for pedestrian dune crossovers. The dune/vegetation restoration plan will enhance the area.

    
    

    Dune line

    
    

39. Structures constituting the proposed Pelican Beach Resort condominium project are approximately 150 feet landward of the primary dune system on the site. It is typical for DEP to approve major structures, such as those proposed for the Pelican Beach Resort condominium project, that are closer to the dune system than those proposed in permit OK-115.

    
    

    Beach/Dune Impacts

    
    

40. The Pelican Beach Resort condominium project has been designed to have a minimum adverse impact on the beach-dune system, because the proposed structures are landward of the active beach; substantially landward of the primary dune; and the beach is accreting.

    
    

41. The Pelican Beach Resort condominium project is located a sufficient distance landward to preserve dune stability, and to allow natural recovery following storm-induced erosion. Moreover, the shoreline is accretional; the beach stable and the structures within the Pelican Beach Resort condominium project are sited well landward of the dynamic portion of the beach to allow for recovery.

    
    

    Impacts on Adjacent Properties

    
    

42. The Pelican Beach Resort condominium project will not have any adverse impact on the beach/dune system of adjacent properties. Structures within the project are too far landward of the dynamic portion of the beach to adversely affect adjacent properties. The unique dune/vegetation restoration and enhancement plan that will be implemented as part of the project will actually enhance the dune system in the area.

    
    

    Line of Construction

    
    

43. The condominium building for the Pelican Beach Resort project is 40 to

    55 feet landward of the adjacent Regency Towers condominium building.

    
    

44. To establish the line of construction, DEP typically looks at the seaward location of structures 1,000 feet on each side of the proposed structure to be permitted.

    
    

45. The line of construction represents the seaward limit of the encroachment of structures along the beach, not the landward alignment of such structures.

46. There are a sufficient number of structures within the immediate area of the proposed Pelican Beach Resort condominium project to establish a continuous line of construction.

    
    

47. The line of construction for the Pelican Beach Resort site corresponds closely to the 1978 CCCL.

    
    

48. The line of construction for the Pelican Beach Resort site is accurately depicted by Respondents Map Exhibit 32. All of the major structures within the Pelican Beach Resort project are, at a minimum, 40 to 55 feet landward of the established line of construction for the site.

    
    

49. The Regency Towers condominium building immediately to the west of the Pelican Beach Resort site is the most identifiable line of construction to the west.

    
    

50. Within 1,000 feet of the Pelican Beach Resort site, there are a number of structures that are located much more seaward of the 1978 CCCL and establish a line of continuous construction that is even more seaward of the 1978 CCCL.

    
    

51. The Holiday Beach Resort project immediately to the east of the Pelican Beach Resort site does not establish the line of construction because it is landward of the CCCL, is an anomaly, and is also landward of the seaward line of construction established by other existing high rise structures in the immediate area that are similar to the proposed Pelican Beach Resort project.

    
    

52. The current CCCL does not establish the line of construction.

    
    

53. The Pelican Beach Resort project complies with DEP's setback requirements and its line of construction requirements.

    
    

    Clear Justification

    
    

54. Considering the potential impact of the Pelican Beach Resort project on the beach/dune system, issuance of a CCCL permit for the project is clearly justified.

    
    

55. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.

    
    

    AGR-OK-003

    
    

56. DEP and Federal Deposit Insurance Company ("FDIC") entered into an agreement regarding the property to be developed by Pelican Resort Developments, Inc., pursuant to permit OK-115.

    
    

57. The agreement was entered into under Section 161.053, Florida Statutes.

    
    

58. Such agreements are entered into by property owners and DEP when the CCCL is being reestablished to give the property owner reasonable assurance of how it can develop its property after the CCCL is reestablished.

    
    

59. The benefit of such agreements to DEP is that they lessen the chance that property owners will begin poorly designed hasty construction which

    adversely affects the beach/dune system in order to be grandfathered from DEP permit requirements.

    
    

60. A property owner who enters into such an agreement must still obtain a CCCL permit from DEP before constructing on the property seaward of the CCCL.

    
    

61. Special Permit Condition 2 of permit OK-115 requires that the permittee, Pelican Resort Developments, Inc., terminate the agreement before DEP will allow the permittee to proceed with construction. The permittee, Pelican Resort Developments, Inc., is committed to terminating the agreement pursuant to Special Permit Condition 2.

    
    

62. DEP's intent to issue permit OK-115 was issued pursuant to Section

    161.053 Florida Statutes, and DEP's rules, not the FDIC/DEP agreement. In order to approve a project where an agreement is involved, DEP looks for consistency with the overall intent of the agreement. However, when the project is finally permitted, it has to comply with DEP's rules. The Pelican Beach Resort project is consistent with all the requirements of Section 161.053, Florida Statutes, and Rule Chapter 16B-33, Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

63. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this action. Section 120.57(1), Florida Statutes.

    
    

    Section 161.053 Florida Statutes

    
    

    Coastal Construction Control Line Permitting

    
    

64. DEP is authorized by Section 161.053(1)(a), Florida Statutes, to establish coastal construction control lines on a county by county basis "to define that portion of the beach-dune system which is subject to fluctuations based on a 100-year storm surge . . . ." Construction seaward of an established coastal construction control line ("CCCL") is allowed only if a CCCL permit is obtained from DEP. An applicant for such a permit must submit an application, which includes the following:

    
    

    1. Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography.

    2. Design features of the proposed structures or activities; and

    3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach-dune system, which,

       in the opinion of the department, clearly justify such a permit.

       
       

       Section 161.053(5)(a), Florida Statutes.

       
       

       DEP Rule Policies

       
       

65. DEP's general policies for the issuance of CCCL permits are contained in Rule 16B-33.005, Florida Administrative Code, and in relevant part are:

    1. A coastal construction control line (Section 161.053, Florida Statutes) is intended to define that portion of the beach-dune system which is subject to severe fluctuations based on one-hundred-year storm surge, storm waves, or other predictable weather conditions. . . .

       establishment of a coastal construction control line . . . does not preclude all development of or alteration of coastal property seaward of such lines. However, activities seaward of a coastal construction control line ... shall be stated and clearly justified by the applicant.

    2. Seaward of the coastal construction control line . . . special siting, structural and other design considerations are required:

       1. for the protection of the beach-dune system;

       2. for the protection of any proposed or existing structures; and

       3. for the protection of adjacent properties.

    * * *

    1. In keeping with the intent of Paragraph 161.053(5)(c), Florida Statutes, it is the Department's policy to protect native salt resistant vegetation and endangered plant communities. Special conditions may be placed

       on permitted activities so as to limit the nature, timing, and sequence of construction. . . .

    2. In keeping with the intent of Paragraph 961.053(5)(c), Florida Statutes, it is the Department's policy to protect nesting sea turtles and hatchlings and their habitat pursuant to Section 370.12, Florida Statutes. Special conditions may be placed on permitted activities so as to limit the nature, timing,

    and sequence of construction . . .. The Department may not authorize any proposed activity such

    as the construction of rigid coastal or shore protection structures, when the applicant or permittee has not provided reasonable assurance that nesting sea turtles and hatchlings will be protected.

    
    

66. Permit OK-115 and the Pelican Beach Resort project comply with Section 161.053(5)(a), Florida Statutes, and Rule 16B-33.005, Florida Administrative Code. First, the project is sited well landward of the active beach system, the primary dunes, and the vegetation line. Such siting will protect the beach-dune system, will protect vegetation, will protect the proposed structures, will protect adjacent properties, and will prevent damage to the primary dune and the active beach. In turn, the dune restoration plan required by special permit condition and as called for under Rule 16B-33.005(8), Florida Administrative Code, will enhance the beach/dune system and vegetation, and further protect adjacent properties. Moreover, the dune restoration plan, will restore any damage cause by construction and will enhance the beach/dune system. Thus, permit OK-115 complies with Section 161.053(5)(a), Florida Statutes, and Rule 16B-33.005, Florida Administrative Code.

67. Rule 16B-33.005(9), Florida Administrative Code, allows DEP to impose special conditions to protect nesting sea turtles, hatchlings and their habitat. It further provides that permits may not be issued where the applicant has not provided reasonable assurance that nesting sea turtles and hatchlings will be protected. As stipulated by the parties, the project will not have an adverse impact on sea turtles, hatchlings and their habitat. Reasonable assurances have been provided that sea turtles, hatchlings, and their habitat will be protected. Permit OK-115 also contains adequate conditions for such protection.

    
    

    Other Rule Requirements Necessary for Permit Approval

    
    

68. Aside from the rule policies described above, Rule 16B-33.007, Florida Administrative Code, sets forth other requirements for approval of coastal construction control line permits under Section 161.053, Florida Statutes. These requirements include locating proposed structures sufficiently landward of the beach dune system to permit natural shoreline fluctuations; preserving dune stability; and allowing natural recovery of the dune following storm induced erosion; minimizing adverse impacts on the beach-dune system or adjacent properties; and engineering design criteria meant to make sure that the proposed structures can withstand certain wind and coastal forces.

    
    

69. As stipulated by the parties, the proposed structures meet all applicable engineering structural design criteria. The project satisfies the structural engineering requirements set-forth in Rules 16B-33.007(3) and (4), Florida Administrative Code.

    
    

70. Permit OK-115 and the Pelican Beach Resort project comply with Rule 16B-33.007(2), Florida Administrative Code, because the structures are designed to minimize any expected adverse impacts on the beach-dune system and adjacent properties. This rule does not prohibit such impacts; rather it requires that they be minimized. The design features of the project--its landward location and the dune restoration plan--minimize any impacts to the beach dune system. Moreover, location of the proposed structures well landward of the active dynamic beach, the primary dune, and the vegetation line will allow natural shoreline fluctuations and natural recovery following storm induced erosion and will preserve dune stability. Thus, there is compliance with Rule 16B

    Florida Administrative Code.

    
    

    Local Approval

    
    

71. Rule 16B-33.008(2)(c), Florida Administrative Code, requires that an application under Section 161.053, Florida Statutes, include written evidence provided by the appropriate local governmental agency that the proposed construction does not contravene local setback requirements or zoning or building codes. Such evidence was provided by the City of Destin.

    
    

    Public Access

    
    

72. Section 161.053(5)(e), Florida Statutes, provides that DEP shall limit the construction of structures that interfere with public access along the beach and may require as a condition to permits the provision of alternative access when interference with public access along the beach is unavoidable. This project will not interfere with public access because of its landward location and because the beach is accreting.

    Evidence of Ownership

    
    

73. Rule 16B-33.008(2)(a), Florida Administrative Code, requires that applicants for CCCL permits provide sufficient evidence that they own the property for which the permit is requested. Such proof of ownership is not required by Section 161.053, Florida Statutes. But, sufficient proof of ownership was provided in this case. First, the initial applicant, Major Development, Ltd., provided DEP with a copy of its executed and recorded warranty deed to the property. Secondly, Pelican Resort Developments, Inc., once it became the owner of the property, provided DEP with a warranty deed evidencing its ownership and filed a permit transfer agreement with DEP, which was approved by DEP under Rule 16B-33.016, Florida Administrative Code. There is ample evidence in the record that Pelican Resort Developments, Inc., owns the property for which the CCCL permit is requested.

    
    

74. By DEP's own rules, proof of ownership is not an approval criteria. Instead, proof of ownership must only be submitted as part of an application. Further, in this case, competent substantial evidence, both documentary and expert testimony, affirms Pelican Resort Developments, Inc.'s ownership of the property. Respondent offered no evidence to refute such ownership.

    
    

    Notice Sufficiency

    
    

75. By Order, the parties were directed to draw up a prehearing stipulation which was to include, among others, a statement of the issues of law and fact that remain to be litigated. Pursuant to the Order, the parties signed and filed the Prehearing Stipulation. Subsequently, however, on the eve of the final hearing, Petitioner filed a supplemental prehearing stipulation without notice to or the consent of DEP or the Respondents raising the following additional issue of fact to be litigated:

    
    

    Whether or not the coastal construction permit application and the associated DEP file are complete including, but not ,limited to notice.

    
    

    At hearing, counsel for Petitioner argued that the application for OK-115 is incomplete because the public notice published by Respondent advising substantially affected parties of their right to request a formal hearing regarding DEP's intended agency action was somehow deficient as it was not notice to the world, nor to unit owners within the Regency Towers condominium. This argument is unpersuasive. Petitioner does not represent the world.

    
    

76. The purpose of the September 10, 1994, public notice was to advise substantially affected persons of their Section 120.57 rights. The sufficiency of that notice is not subject to challenge by a party, Petitioner in this instance, who filed for administrative remedies and participated in this hearing. Notably, Petitioner did not raise such issue in the initial petition or include the issue in the prehearing stipulation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Permit Number OK-115, subject to the special permit conditions set forth in DEP's September 8, 1994, order.

DONE and ENTERED in Tallahassee, Florida, this 22nd day of December, 1994.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.

APPENDIX

In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties.

Petitioner's Proposed Findings

1. Accepted, not verbatim.

2. Rejected, legal conclusion.

3.-6. Accepted, not verbatim.

7. Rejected, public notice was provided.

8.-12. Rejected, relevance.

1. Rejected, weight of the evidence.

2. Rejected, relevance.

3. Rejected, subordinate to HO findings. 16.-23. Rejected, weight of the evidence.

Respondent's Proposed Findings

1.-23. Accepted, not verbatim.

24. Rejected, legal conclusion.

25.-26. Accepted.

27. Rejected, legal conclusion, relevance. 28.-72. Accepted.

73. Rejected, redundant.

74.-76. Accepted.

77.-78. Rejected, relevance.

79.-80. Accepted.

81.-84. Rejected, redundant.

COPIES FURNISHED:

Virginia B. Wetherell Secretary

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dana M. Wiehle

Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

John O. Williams James Alexander

Lindsey & Williams, P.A. Renaissance Square

1343 East Tennessee Street Tallahassee, Florida 32308

James E. Alexander Attorney at Law

No. 323, Stanford Pointe 2401 Stanford Road

Panama City, Florida 32405

Thomas G. Tomasello Attorney At Law

Oertel, Hoffman, Fernandez & Cole, P.A.

2700 Blair Stone Road, Ste. C Post Office Box 6507 Tallahassee, Florida 32314-6507

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 94-005826

Orders for Case No: 94-005826