STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM AND JILL CROUTHERS, )

)

Petitioners, )

)

vs. ) Case No. 97-0994

) J.B.’S FISH CAMP and STATE OF ) FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

)

PAUL TYRE, )

)

Petitioners, )

)

vs. ) Case No. 97-1420

) CAPTAIN J.B.’S FISH CAMP and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held in these cases before Larry J. Sartin, a duly designated Administrative Law Judge of the Division of Administrative Hearings, on April 2 and 3, 1997, in New Smyrna, Florida.

APPEARANCES

For Petitioners, William and Jill Crouthers:

Robert J. Shields Qualified Representative 6863 Engram Road

New Smyrna, Florida 32169

For Petitioner, Paul Tyre:

Paul Tyre

6820 Engram Road

New Smyrna Beach, Florida 32169

For Respondent, Department of Environmental Protection: Thomas I. Mayton, Jr.

Assistant General Counsel Department of Environmental

Protection Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 For Respondent, J.B.'s Fish Camp:

Mary D. Hansen, Esquire

STORCH, HANSEN and MORRIS, P.A.

Suite 300

1620 South Clyde Morris Boulevard Daytona Beach, Florida 32119

STATEMENT OF THE ISSUE

The issue in these cases is whether the Department of Environmental Protection should grant an environmental resourced permit and a variance from the provisions of Rule 40C-4.032(c), Florida Administrative Code, for a project proposed by J.B.'s Fish Camp.

PRELIMINARY STATEMENT

The Department of Environmental Protection gave notice to certain individuals, including Nancy S. Soke, of its intent to issue a permit and approve a variance from the provisions of Rule 40C-4.032(c), Florida Administrative Code, for the construction of a sixteen-slip docking facility. By letter dated December 13,

1996, Ms. Soke requested a formal hearing to challenge the proposed decision of the Department of Environmental Protection.

Ms. Soke's request for hearing was filed with the Division of Administraive Hearings on January 17, 1997 by Request for Assignment of Administrative Law Judge and Notice of Preservation of Record. The request was designated Case Number 97-0307 and was assigned to the undersigned.

On or about January 6, 1997, the Department of Environmental Protection caused notice of its intent to issue a permit and approve a variance to be published. On or about January 19, 1997, the Bethune Beach Property Owners' Association requested a formal administrative hearing. This request was filed with the Division of Administrative Hearings. The request was designated Case Number 97-0937 and was assigned to the undersigned.

On or about January 23, 1997, William E. Crouthers, Jill Crouthers, Dennis Soke, and Nancy Soke jointly filed a petition requesting a formal administrative hearing. They subsequently filed an amended petition. The amended petition was filed with the Division of Administrative Hearings on March 7, 1997.

On March 20, 1997 an Order Granting Motion to Consolidate and Consolidation of Case, Sua Sponte, was entered. Case Numbers 97-0307, 97-0937, and 97-0994 were consolidated by this order.

On or about January 27, 1997 a fourth request for hearing was filed with the Department of Environmental Protection. The request was filed by Paul E. Tyre, Jr., and Sharon Tyre. This

request was filed with the Division of Administrative Hearings on March 20, 1997. The request was designated case number 97-1420 and was assigned to the undersigned. Case Number 97-1420 was consolidated with the other three cases at the commencement of the formal hearing of these cases.

Prior to, and after the commencement of, the formal hearing, several motions were filed. A motion hearing was conducted by telephone prior to the formal hearing to consider some of the motions. The other motions were disposed of at the commencement of the formal hearing. The motions, and rulings thereon, are described in an order entered April 8, 1997. Of pertinence to these proceedings, a Request For Official Recognition was granted, and the petitions filed in case numbers 97-994, and 97- 1420 were dismissed, with leave to amend. Amended petitions in both cases were filed during the formal hearing.

At the commencement of the formal hearing, Nancy S. Soke voluntarily dismissed her request for hearing in Case Number 97- 0307. The file in that case was closed by the April 8, 1997 order. Dennis and Nancy Soke also voluntarily dismissed their request for hearing in Case Number 97-0994. Bethune Beach Property Owners' Association voluntarily dismissed its request for hearing on April 3, 1997. Therefore, the file in Case Number 97-0937 was closed by the April 8, 1997 order. Finally, Mr. Tyre represented that Sharon Tyre wished to voluntarily dismiss her request for hearing in case number 97-1420.

As a result of the foregoing, only two files remain open: Case Number 97-0994, and Case Number 97-1420. The style of Case Number 97-1420 has been changed to reflect that Mr. Tyre is the only Petitioner.

During the formal hearing, J.B.'s Fish Camp presented the testimony of James Lawson Carr, Brian Douglas Poole, Harry Wild, Joe Young, and John Bollman. Nineteen exhibits were offered by J.B.'s Fish Camp. They were accepted into evidence.

Mr. Crouthers testified and presented the testimony of Mr.

Carr, Mr. Poole and Dennis Soke. The Crouthers offered seven exhibits. They were accepted into evidence, to the extent ultimately determined to be relevent.

Mr. Tyre testified on his own behalf. Mr. Tyre offered six exhibits. They were accepted into evidence.

The Department of Environmental Protection did not call any witnesses or offer any exhibits.

A transcript of the formal hearing was filed on May 5, 1997.

Mr. Tyre filed a letter discussing this dispute on May 9, 1997. A document styled "Closing Argument" was filed on behalf of Mr. and Ms. Crouthers on May 9, 1997. A proposed recommended

orderwas filed on behalf of J.B.'s Fish Camp on May 15, 1997. On May 16, 1997 the Department of Environmental Protection adopted the proposed order filed by J.B.'s Fish Camp.

On May 14, 1997 a motion to strike was filed by J.B.'s Fish Camp. It has been requested in the motion that an order be

entered striking two documents attached to the Closing Argument filed on behalf of Mr. and Ms. Crouthers. The motion is hereby granted.

On May 15, 1997, Respondent J.B.'s Fish Camp's Motion for Attorneys' Fees and Costs as to Petitioners Crouthers and Tyre, and Respondent J.B.'s Fish Camp's Proposed Order Concerning Attorneys' Fees were filed. An amendment to the propose order was also filed May 15, 1997. On May 21, 1997 Petitioners Response to the Respondents Proposed Order for Attorney Fees was filed on behalf of Mr. and Ms. Crouthers. An Affidavit in Opposition to Respondents Motion for Council Fees was also filed on behalf of Mr. and Ms. Crouthers. Mr. Tyre filed a letter in response to the proposed order and motion on May 23, 1997.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Respondent, J.B.'s Fish Camp (hereinafter referred to as "J.B.'s"), consists of a restaurant and aquaculture facility. J.B.'s is owned by John Bollman.

   2. J.B.'s is located on an unnamed branch of the Indian River (hereinafter referred to as "Indian River North "), near Bethune Beach, Volusia County, Florida. J.B.'s is located approximately eight miles south of Ponce de Leon Inlet, which provides access to the Atlantic Ocean.

   3. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida.

   4. The Department is charged with the responsibility for, among other things, reviewing environmental resource permit applications for certain docks, applications for sovereign submerged lands leases, and variance applications for construction of structures which potentially may pollute waters designated as Aquatic Preserve.

   5. Petitioners, William and Jill Crouthers, reside at 6828 Engram Road, Bethune Beach, Florida. Their residence is approximately 300 feet south of J.B.'s.

   6. Mr. Crouthers operates a sailboat, and a motorized boat in Indian River North, adjacent to J.B.'s.

   7. Petitioner, Paul Tyre, resides at 6820 Engram Road, Bethune Beach, Florida. His residence is approximatley 250 feet south of J.B.'s.

   8. Mr. Tyre has often boated in Indian River North, adjacent to J.B.'s.

2. J.B.'s Existing Facility.

   
   

   1. At the time of the formal hearing of these cases, J.B.'s operated a resturant on the shore of Indian River North. J.B.'s owns approximately 308 feet of shoreline.

   2. The waters in which J.B.'s docks are located have been approved by the Department for conditionaly restricted shellfish

      harvesting. The waters have been designated Class II waters, an Aquatic Preserve, and an Outstanding Florida Water.

   3. J.B.'s has two existing docks in Indian River North and connected to the shoreline of J.B.'s property. One dock is "L" shaped and is located adjacent to the restaurant (hereinafter referred to as the "Existing Restaurant Dock").

   4. J.B.'s other dock is "T" shaped, and is located near a bait shop operated by J.B.'s south of the Existing Restaurant Dock (hereinafter referred to as the "Existing Bait-Shop Dock").

   5. The Existing Restaurant Dock is used by patrons of the restaurant and by J.B.'s to unload shellfish which are raised and harvested by J.B.'s.

   6. Passengers are also loaded from the Existing Restaurant Dock on tour boats operated by J.B.'s.

   7. Boats are docked at both docks by partons of the restaurant. At times as many as 40 boats may be docked at J.B.'s.

   8. The Existing Restaurant Dock is only designed to reasonably dock less than 10 boats. More boats are docked at the Existing Restaurant Dock because they are "rafted". "Rafting" is the docking of a boat at a dock and then tying other boats to the side of the docked boat. Additional boats are then tied to the outside boat. Boats are also anchored on the bottom around the docks and the immediate area.

   9. The existing docks are in relatively shallow water. As a consequence, prop dredging takes place at low tide near the docks.

3. J.B.'s Proposed Project.

   
   

   1. In June of 1989 J.B.'s filed an application with the Department seeking a permit which would allow it to replace the existing docks with a ten-slip dock to replace the Existing Restaurant Dock, a concrete boat-launching ramp adjacent to J.B.'s existing bait shop, and six-slip dock to replace the Existing Bait-Shop Dock. On or about September 16, 1996, J.B.'s requested a variance from the requirements of Rule 40C-4.302©, Florida Administrative Code.

   2. The proposed facilities were described in the application, in part, as follows:

      The proposed docking facility will consist of a primary dock 24-feet wide by 75-feet long attached to an existing concrete patio. An 8- foot wide walkway will extend from the north end of the main dock, extending 80-feet to the north. Three finger piers will be constructed perpendicular to and extending waterward from the walkway. One will be four feet wide, the other two will be 2'6" wide. They will extend waterward sixteen feet. . . .

      . . . .

      
      

      Another existing dock, in a "T" shape is located 35' north of the applicants' south property line. The existing dock extends waterward 73'6" and is 4' wide. The top of the "T" section is 46'6" by 4' wide. Four finger piers 2/6" wide by 16' long will be constructed waterward from this dock and one finger pier 2'6" wide by 10' long will be constructed parralell to the shore line. . . .

   3. J.B.'s represented in the application that the dock be constructed to replace the Existing Restaurant Dock (hereinafter referred to as the "Proposed Restaurant Dock"), would be used by boaters visiting the restaurant, and to unload shellfish.

   4. J.B.'s respresented in the application that the dock to replace the Existing Bait Shop Dock (hereinafter referred to as the "Proposed Bait Shop Dock"), would be used as rental spaces for six boats.

   5. Due to concerns raised by the Department about J.B.'s initially proposed project, J.B.'s modified its proposal:

      1. The width of the Proposed Restuarant Dock was reduced from 24 feet to 10 feet, except where the dock will intersect with an existing platform;

      2. The Proposed Restaurant Dock was moved further from shore and into deeper waters;

      3. The proposed boat ramp was eliminated completely; and

         
         

      4. The Proposed Bait-Shop Dock was eliminated and the Existing Bait-Shop Dock is to be completely removed.

   6. As finally approved by the Department, the project will consist of the following sixteen-slip Proposed Restaurant Dock (hereinafter referred to as the "Proposed Project"):

      1. A 10-foot long walkway running waterward of the existing concrete deck, will be built over the Existing Restaurant Dock;

      2. The walkway will connect with a 10-foot walkway running parallel to the shoreline for a distance of approximately 224 feet;

      3. Sixteen slips will extend waterward of the parallel walkway, for a total width of walkway and slips of 26 feet;

      4. Two slips will be roofed for use for J.B.'s commercial fishing activites. The roof will be peaked, rather than flat; and

      5. A railing of a minimum of 3-feet high will be constructed along the landward side of the Proposed Restaurant Dock in an effort to discourage boats from mooring in locations other than the 16 approved slips.

   7. A number of conditions on the issuance of the variance sought by J.B.'s have been imposed by the Department on the Proposed Project:

      1. This variance is validonly if a wetland resource management permit is issued for this project, and is subject to any and all conditions on the permit. The granting of this variance does not guarantee the issuance of the permit.

         
         

      2. This variance shall be valid through the life of the permit, if one is issued.

         
         

      3. Where necessary, proper turbidity controls shall be used to prevent violations of the State Water Quality Standard for turbidity. Further details of turbidity control may be specified in the permit, if one is issued.

         
         

      4. There shall be no more than sixteen

         boats moored at the structure.

         
         

      5. No overboard discharges of trash, human or animal waste, or fuel shall occur at the dock.

         
         

      6. Any non-water department structures, such as gazebos or fish cleaning stations, shall be located on the uplands. Further design details may be specified in the permit.

         
         

      7. Any proposed or anticipated boat shelter shall not have enclosed sides.

         
         

      8. The mooring area shall be located in waters sufficiently deep to prevent bottom scour by boat propellers.

         
         

      9. Any structures located over grassbeds shall be designed so as to allow for the maximum light penetration practicable. Further design details may be specified in the permit, if one is issued.

         
         

      10. The boat ramp shall be peermanently closed.

          
          

      11. Given good cause by either party, the District Director may alter the terms and conditions of the variance.

          
          

   8. The following conditions on the permit being sought by J.B.'s designed to protect manatee have been accepted by J.B.'s:

      1. The number of slips available for boat usuage be limited to 16. Rafting, anchoring or pulling boats ashore shall be prohibited;

         
         

      2. The existing boat ramp shall be closed;

         
         

      3. The standard manatee construction conditions are followed for all in water construction;

         
         

      4. Manatee caution signs and/or information displays are installed and

         maintained;

         
         

      5. Distribute copies of "Volusia County Manatee Protection Zones" booklets available free of charge from the Florida Inland Navigation District.

         
         

   9. J.B.'s also agreed to establish a conservation easement over an area of approximately 224-linear feet of shoreline (excluding an area dedicated as a public easement).

   10. The area of the conservation easement must be planted by J.B.'s with littoral vegetation. J.B.'s has agreed to plant mangroves.

   11. J.B.'s will use pilings for the Proposed Restaurant Dock of a type approved by the Department with regard to potential leaching of preservatives into the surrounding waters.

4. J.B.'s Applications.

   
   

   1. On or about June 7, 1989 J.B.'s filed an application with the Department for what was then referred to as a "wetlands resource or dredge and fill permit".

   2. On or about September 16, 1996 J.B.'s applied for a variance from Rule 40C-4.302(1)(c), Florida Administrative Code. This Rule requires that a permit application be denied if a project will result in damage to areas in Class II Waters and areas approved for shellfish harvesting.

   3. In support of its Proposed Project, J.B.'s submitted the following:

      1. A hydrographic study prepared by a civil engineer. J.B.'s Exhibit 4;

      2. An Aquatic Preserve Report prepared by an environmental consultant. J.B.'s Exhibit 14; and

      3. A shoreline planting plan for mangroves prepared by the environemantl consultant that prepared the Aquatic Preserve Report. J.B.'s Exhibit 15.

   4. J.B.'s also applied for a submerged lands lease in conjunction with its permit application and request for variance. The evidence, however, proveed that the Department has not yet given notice of its intended action on the submerged lands lease. Whether the submerged lands lease should be granted is, therefore, not issue in this proceeding.

5. The Department's Proposed Approval and the Challenges Thereto.

   
   

   1. The Department decided to enter a notice of intent to issue the permit and variance sought by J.B.'s. On January 6, 1997, notice of the Department's decision was published in a local newspaper.

   2. On or about January 17, 1997 Paul Tyre filed a letter challenging the Department's proposed decision. The letter was not filed within 14 days of the date notice of the Department's decision was published. Therefore, the Department dismissed Mr. Tyre's request for hearing.

   3. The Department subsequently discovered that the published notice indicated that challenges could be filed with 21 days of the date of publication. When the Department discovered this fact, it accepted Mr. Tyre's request for hearing.

   4. On or about Janaury 23, 1997 William and Jill Crouthers filed a Joint Petition challenging the Department's proposed decision.

6. The Impact on Water Quality.

   
   

   1. There will be some turbidity during the construction of the Proposed Project. That turbidity will be temporary. Steps will be taken to minimize the amout of turbidity through the use of reasonably available turbidity controls.

   2. By moving the Proposed Restaurant Dock into deeper water than the water in which the Existing Restaurant Dock is located, turbidity caused by boats which frequent the dock will be reduced. This impact is a positive benefit which will be realized from the project over existing conditions.

   3. The evidence also proved that tidal flow in the area is sufficient to adequately disperse any pollutant discharges.

   4. There are impacts to the quality of water surrounding the existing facilities as a result of boats using the existing docks, fish cleaning on the docks, and the boat ramp. These impacts would continue regardless of whether the Proposed Project is approved. At issue, therefore, is whether the Proposed Project will worsen those impacts. The evidence proved that the Proposed Project will not result in a worsening of the impacts to water quality. In fact, the Proposed Project should lessen those impacts. The Proposed Project will reduce existing impacts to water quality by improving the depth at which boats will dock,

      the elimination of fish cleaning on the docks, the elimination of the Existing Bait Shop Dock, and the elimination of the existing boat ramp.

   5. Impacts to water quality may also be lessened if J.B.'s adheres to the conditions imposed by the Department on the docking of boats at the Proposed Restaurant Dock.

   6. J.B.'s has represented to the Department that the conditions designed to reduce the number of boats that can be moored at the Proposed Restaurant Dock are acceptable and will be adhered to.

   7. At the formal hearing, Mr. Bollman indicated some doubt about his ability to insure that conditions concerning the number of boats moored at the Proposed Restaurant Dock are always carried out. Whether Mr. Bollman believes that the conditions are capable of enforcement by J.B.'s, Mr. Bollman and J.B.'s have indicated agreement to the issuance of the permit with the conditions. Therefore, whether Mr. Bollman believes the conditons can be carried out, he is bound to carry them out.

   8. The evidence presented by Petitioners concerning the impact on water quality failed to address the impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate to the Indian River Lagoon

      generally. Those documents constituted hearsay and did not address impacts on water quality from J.B.'s Proposed Project.

   9. The weight of the evidence proved that the proposed facilities will not cause a violation of water quality standards.

7. Impact on the Public Health, Safety and Welfare and the Property of Others.

   
   

   1. The evidence in this case proved that the Proposed Project will not adversely impact the public health, safety, and welfare.

   2. Considering the permit with the conditions imposed, the impact on the public health, safety and welfare of the area should be slightly improved over existing conditions.

   3. Petitioners suggested that the Proposed Restaurant Dock will cause an increase in the number of boats that frequent J.B.'s. This suggestion is based upon the size of the new dock and their assumption that the conditions of the permit concerning the limitation on the number of slips and the manner in which boats may be moored will not be enforced. That is an assumption that cannot be made for purposes of this review.

   4. Reviewing the permit with its conditions, the number of boats that moor at the Proposed Restaurant Dock should be reduced. J.B.'s has agreed to be bound by the conditions. That is all that is required for purposes of this review. Failure to adhere to the conditions, if that occurs, is an enforcement issue.

   5. The evidence proved that the Proposed Project should not have an adverse impact on the property of others.

      
      

8. Impact on Conservation of Fish and Wildlife, Including Threatened or Endangered Species, of Their Habitat.

1. The depth of water in the area of the Proposed Restaurant Dock is approximately three feet.

2. There is no vegetation at the footprint of the dock. Benthic organisms are present in the footprint area, but their numbers and diversity should not be adversely affected by construction, and operation of the dock.

3. Due to the lack of vegetation in the area, fish and other wildlife are not attracted to the area around the Proposed Restaurant Dock.

4. The shoreline area of J.B.'s is also devoid of significant emergent vegetation. The Proposed Project should not disturb grasses or vegetation that do exist.

5. There are mangroves located at the north end of J.B.'s They will not be impacted by the construction or operation of the dock.

6. The parties stipulated that at least 16 manatee utilize Indian River North. They travel to and from foraging, mating and resting areas in Indian River Lagoon. The evidence failed to prove that the Proposed Project will increase any negative impacts to manatee in the area.

7. The evidence failed to prove that the area of the Proposed Restaurant Dock constitutes a feeding, mating or resting area for manatee.

8. Although little specific evidence concerning manatee was presented, it appears that the most serious danger to the manatee are associated with boats striking manatee. The evidence failed to prove the extent, if any, to which manatee mortality or injury is associated with boats utilizing the docks at J.B.'s. The evidence also failed to prove that the Proposed Project will increase any such negative impact that may already be taking place.

9. The conditions imposed on J.B.'s concerning the protection of manatee may lessen any current impact on manatee from boats utilizing J.B.'s. These conditions provide greater protection than currently exists.

10. The evidence presented by Petitioners concerning the impact on fish and wildlife, including threatened and endangered species, or their habitat, failed to address impacts from the Proposed Project. Petitioners presented evidence of an anecdotal nature. That evidence related to the existing docks and not the Proposed Project. Petitioners also presented evidence in the form of documents which relate the Indian River Lagoon generally. Those documents constituted hearsay and did not address impacts from J.B.'s Proposed Project.

11. The evidence proved that the impact on fish and wildlife, including threatened or endangered species, or their habitat, will be minimal.

    1. Impact on Navigation, the Flow of Water, Erosion and Shoaling.

       
       

12. Water depths in the area of J.B.'s increase gradually away from the shoreline to approximately five feet.

13. There is no central, dredged channel in Indian River North.

14. The distance between the most waterward edge of the Proposed Restaurant Dock and the opposite shoreline is approximately 250 feet. The Proposed Project will extend over approximately 18 percent of the total width of Indian River North at J.B.'s.

15. The navigable channel of Indian River North is located to the east of the center of the water body adjacent to J.B.'s. It is slightly closer to J.B.'s than it is to the opposite shore.

16. There is sufficient water depth and area between the most waterward side of the Proposed Restaurant Dock and the opposite shore for the passage of manatee and boats.

17. If the conditions of the permit relating to the number of boats that may dock at the Proposed Restaurant Dock are adhered to, the proposed facility should slightly improve navigation because of the elimination of rafting of boats.

18. Currently, shoreline erosion in the area of J.B.'s is caused from landward activities and not boat wakes. The evidence

    failed to prove that the amount of erosion that does occur from boat wakes will be any greater as a result of the Proposed Project.

19. The conservation easement and the shoreline plantings agreed to as a condition of the Department's approval of the proposed facility will add protection to the shoreline at J.B.'s, and should reduce erosion.

20. The permit condition prohibiting boats from mooring outside of designated moorings should reduce prop scouring near shore. Moving the Proposed Restaurant Dock further from shore should also reduce prop scouring. These conditions will result in a positive benefit over current conditions.

21. The evidence presented by Petitioners concerning the impact on navigation, the flow of water, erosion and shoaling failed to prove that there will be negative impacts from the Proposed Project. Petitioners presented evidence of an anedotal nature. That evidence related to the existing docks and not the Proposed Project.

22. The evidence proved that there will be no negative impacts to navigation, or the flow of water as a result of the Proposed Project. The evidence also proved that the Proposed Project will not cause erosion or shoaling.

    1. Impact on Fishing, Recreational Values, and Marine Productivity in the Vicitnity of the Project.

       
       

23. The Proposed Project will result in a slight increase in recreational values in the vicinity of J.B.'s.

24. The evidence failed to prove that the Proposed Project will have an adverse impact on fishing or marine productivity in the vicinity of J.B.'s.

    1. Temporary or Permanent.

       
       

25. The Proposed Project will be permantent in nature.

    
    

    1. Impact on Historical and Archaeological Resources.

       
       

26. The Proposed Project will have no impact on historical or arcyhaeological resources.

    1. Impact on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Proposed Activity.

    
    

27. The evidence proved that the Proposed Project will not adversely affect current conditions, or the relative value of functions being performed by areas affected by the Proposed Project.

28. Because of shoreline plantings, the conservation easement and the increased depth of water where boats will be docked, the areas affected by the docks at J.B's will be slightly improved.

    CONCLUSIONS OF LAW

    
    

    A. Jurisdiction and Burden of Proof.

    
    

29. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120,57, Florida Statutes (1996 Supp.).

30. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the

    issue in a proceeding before the Division of Administrative Hearings. Antel v. Department of Professional Regulation, 522 So. 2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d

    249 (Fla. 1st DCA 1977).

    
    

31. In this proceeding, it is J.B.'s that is asserting the affirmative: that the Department should issue a permit, and grant a variance to J.B.'s. J.B.'s, therefore, had the ultimate burden of proof. J.B.'s was required to meet its burden by the preponderance of the evidence. J.W.C. Co., supra.

32. In order for J.B.'s to meet its burden of proof, it was required to present a prima facie showing of entitlement to the permit and variance taking into account the objections raised by Petitioners. J.B.'s met its burden.

33. Following the presentation of J.B.'s prima facie case, Petitioners had the burden of proving the allegations of their petitions. The evidence presented by Petitioners in support of their petitions was required to be of at least equivalent quality to the evidence presented by J.B.'s. See Hoffert v. St. Joe Paper Company, 12 F.A.L.R. 4972 (Fla. Dept. of Env. Reg. 1990). Petitioners failed to meet their burden.

    1. Standing.

34. In order to have standing to institute a proceeding under Section 120.57, Florida Statutes, a party must be "substantially affected":

    Standing under the Administrative Procedure Act (APA) is conferred on persons whose substnatil interest will be affected by proposed agency action. Agrico Chemical Co. v. Department of Environmental Protection, 406 So.2d 478 (Fla. 2nd DCA 1981), rev. denied, 415 So.2d 1359 (Fla.

    1982), and 415 So.2d 1361 (Fla. 1982). . . .

    
    

    A party seeking to show a substantial injury must demonstrate

    
    

    1. that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of the type or nature which the proceeding is designed to protect.

    
    

    Agrico, supra at 482. Florida Society of Opthalmology v. State Bd. Of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988), rev. denied, 542 So.2d

    1333 (Fla. 1989).

    
    

    Friends of the Everglades, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 595 So. 2d 186, 188 (Fla. 1st DCA 1992).

35. J.B.'s has argued that Petitioners in these cases have failed to prove that they are substantially affected because Petitioners have failed to prove that they will suffer any injury.

36. The evidence in this case proved that Petitioners live in close proximity to J.B.'s and the Proposed Project. The evidence also proved that Petitioners use the waters of Indian River North for boating activites. Petitioners have, therefore,

    proved that they will be substantially affected by the Proposed Project. See Friends of the Everglades, supra; Town of Palm Beach v. Department of Natural Resources, 577 So. 2d 1383 (Fla. 4th DCA 1991); and Sheridan v. Deep Lagoon Marina, 576 So. 2d 771 (Fla. 1st DCA 1991).

    1. The Project

       
       

37. The Proposed Restaurant Dock constitutes a stationary source of pollution located in Class II waters classified as conditionally restrictied for shellfish harvesting. Consequently, J.B.'s was required to seek a variance from the requirements of Rule 40C-4.302, Florida Administrative Code, in order to obtain a permit to complete the Proposed Project. See Section 403.201(1)(a), Florida Statutes, and Rule 40C- 4.302(1)(c), Florida Administrative Code.

38. In order to obtain a variance, J.B.'s was required to prove that the Proposed Project meets the requirements of Section 373.414, Florida Statutes.

39. J.B.'s was required to provide reasonable assurances that:

    1. The applicable water quality standards established by the Department will not be violated by the Proposed Project; and

    2. The Proposed Project will be clearly in the public interest.

40. The evidence in this case proved that the water quality standards applicable in this case will not be violated by the Proposed Project.

41. Section 373.414(1)(a), Florida Statutes, requires a balanced consideration of the following criteria in determining whether the Proposed Project is clealy in the public interest:

    1. Whether the activity will adversely affect the public health, safety, or welfare or the property of others;

       
       

    2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

       
       

    3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

       
       

    4. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

       
       

    5. Whether the activity will be of a temporary or permanent nature;

       
       

    6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

       
       

    7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       
       

42. J.B.'s has made reasonable assurances to the Department that, based upon a balanced consideration of the criteria of Section 373.414(1)(a), Florida Statutes, the Proposed Project is clearly in the public interest. Petitioners failed to prove that it is not.

43. Boats are currently allowed to moor at J.B.'s docks. At best, Petitioners presented evidence concerning the current impact of those docks on the surrounding area. Event that proof was inadequate and failed to prove that existing conditions

    violate the statutes and rules the Department is charged with the responsibility for enforcing. Petitioners also failed to present proof concerning the impact of the Proposed Project. Petitioners failed to present proof that would refute the finding that the proposed elimination of the Existing Bait Shop Dock, the elimination of the boat ramp, and the replacement of the Existing Restaurant Dock will improve the impacts associated with J.B.'s.

44. Petitioners have argued that the Proposed Restaurant Dock will necessarily result in an increase in boats that frequent J.B.'s. This argument has been rejected for essentially two reasons. First, it would be necessary to assume that J.B.'s is going to violate the conditions it has agreed to adhere to. Such an assumption cannot be made. Secondly, even if if there is an increase in the number of boats that moor at the Proposed Restaurant Dock, the evidence failed to prove how many in excess of the numbers that already frequent J.B.'s will moor and if the additional boats will necessarily result in detrimental impacts in violation of Section 373.414, Florida Statutes.

    1. New Permit Application.

       
       

45. Petitioners in Case Number 97-994 have argued that J.B.'s should have filed a second permit application because of

    the lenght of time between the filing of the original permit and the Department's proposed decision.

46. The statutes and rules which govern these proceedings do not require the filing of a second permit by J.B.'s. The only parties with an interest in how long it took for the Department to reach a decision concerning the application were the Department and J.B.'s. Petitioners are not impact in any way by the length of time that it took the Department to act.

    1. Attorneys' Fees.

    
    

47. J.B.'s has requested an award of attorney fees and costs pursuant to Section 120.569(2)(c), Florida Statutes (incorrectly cited as Section 120.569(1)(c), Florida Statutes).

48. Section 120.569(2)(c), Florida Statutes, authorizes the impositon of sanctions, including attorney fees and costs, by an Administrative Law Judge under certain circumstances.

49. Jurisdiction will be retained by the undersigned for the limited purposes of entering an order addressing J.B.'s request for sanctions under Section 120.569(2)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a Final Order be entered by the Department of Environmental Protection granting the permit and variance sought by J.B's Fish Camp with the conditions agreed to by J.B.'s

Fish Camp, and dismissing the petitions filed by William and Jill Crouthers and Paul Tyre in these cases.

DONE AND ENTERED this 30th day of June, 1997, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997.

COPIES FURNISHED:

Robert J. Shields, Qualified Representative 6863 Engram Road

New Smyrna, Florida 32169

Paul Tyre

6820 Engram Road

New Smyrna Beach, Florida 32169

Thomas I. Mayton, Jr., Assistant General Counsel Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Mary D. Hansen, Esquire

STORCH, HANSEN and MORRIS, P.A.

1620 South Clyde Morris Boulevard, Suite 300 Daytona Beach, Florida 32119

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000994

Orders for Case No: 97-000994