Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
The Issue The issue for determination is whether Jupiter Hills Lighthouse Marina is entitled to be issued a permit by the Department of Environmental Protection for its project application submitted July 29, 1992, and revised November 15, 1993, to enlarge an existing marina and add new slips.
Findings Of Fact On July 29, 1992, Jupiter Hills Lighthouse Marina (Respondent Jupiter Hills) submitted an application to the Department of Environmental Protection (Respondent DEP) for a permit to enlarge an existing dock facility to 488 feet and to increase the existing 6 slips to 48 new slips. Respondent Jupiter Hills is located 0.7 miles north of Martin County Line Road, on U. S. Highway One, Indian River Lagoon, Jensen Beach to Jupiter Inlet Aquatic Preserve, more particularly described as Martin County, Section 19, Township 40 South, Range 43 East, Indian River Lagoon Class III Waters. On November 15, 1993, Respondent Jupiter Hills amended its application at the request of Respondent DEP. The revised proposed project increases the dock facility from 6 slips to 18 slips, restricting 12 of the 18 slips for sailboat use; and proposes a new 149 foot long T-shaped pier from the existing pier, creating a total dimension of 180 feet by 60 feet. Further, Respondent Jupiter Hills proposes to remove four existing finger piers and 10 existing mooring pilings, to add eight finger piers and 34 new mooring pilings, and to place riprap along the existing seawall and new pier. The proposed project is located in an Outstanding Florida Water (a designated aquatic preserve), the Jensen Beach to Jupiter Inlet Aquatic Preserve, which is a part of the Indian River Preserve. Significant water quality parameters for this proposed project include coliform bacteria, heavy metals, and oil and grease. Water quality standards for oil and grease are not being currently met. However, to address this noncompliance, Respondent Jupiter Hills has agreed to include, as part of this project, the installation of an exfiltration trench to trap grease coming from the uplands. This trench will improve water quality, causing a net improvement of water quality in the proposed project area. Stormwater from the area, including a portion of U. S. Highway One and parking areas within U. S. Highway One right-of-way, discharge directly into Respondent Jupiter Hills. This stormwater then drains directly into tidal waters. The exfiltration trench is designed to intercept up to three-fourths of an inch of the stormwater flow currently draining into the basin. The owners of Respondent Jupiter Hills will maintain the exfiltration trench. They have signed a long-term agreement with Respondent DEP for the maintenance of the trench, and the agreement is included in Respondent DEP's Intent to Issue. Water quality standards for fecal coliform are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills has proposed a sewage pump-out station which is not currently in the area and which will encourage boaters to pump boat sewage into the city treatment area instead of dumping the sewage into the water. The pump-out station will be connected to the central sewage system, but boaters will not be required to use the sewage pump-out station. However, since liveaboards are more likely to cause fecal coliform violations, Respondent Jupiter Hills has agreed that no liveaboards will be permitted in the proposed project. Water quality standards for heavy metals are currently being met. The construction of the proposed project will not preclude or prevent continuing compliance with these standards. Respondent Jupiter Hills proposes to use construction materials which have not been treated by heavy metals. Also, because the proposed project area flushes in one tidal cycle, any additional metals from the boats themselves would be swept away quickly. The proposed project will not adversely impact or affect the public health, safety or welfare or the property of others. Respondent Jupiter Hills has provided reasonable assurance that water quality standards will be met, continue to be met, and not violated. As a result, the public health and safety are protected. The proposed pump-out facility will reduce the incidences of illegal head discharges into the Jupiter Sound. Thus, this facility will benefit the health and safety of swimmers or others participating in water-related activities in the Jupiter Sound. The proposed project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Respondent Jupiter Hills has agreed to several measures designed to reduce any adverse impacts to fish and wildlife and the measures have been incorporated into the Intent to Issue. Respondent Jupiter Hills has agreed to not allow new power boats to dock at the proposed facility, which will prevent adverse affects on the manatee population in the area. Additionally, the proposed pump-out facility will improve the water quality, resulting in a benefit to fish and wildlife, including the Benthic habitat and seagrasses. Respondent Jupiter Hills has further agreed to install navigational signs, directing boaters away from manatees, and no wake signs, indicating the presence of manatees; these signs do not presently exist. Furthermore, Respondent Jupiter Hills has agreed to post signs directing boaters away from any seagrasses located in the proposed project area. Whether seagrasses in the proposed project area will be adversely affected is also a factor to be considered. Inspections and surveys of the proposed project area in December 1992 and mid-March 1993 revealed one patch of Halophila decipiens and Halophila johnsonii at the 100 foot contour but no seagrasses within the footprint of the proposed project. A survey of the area in late April 1994 revealed some seagrasses in the proposed project area but no seagrasses within the footprint of the proposed project. In September 1995, an examination of the area revealed Halophila decipiens just waterward of the existing slips down to the southern property boundaries 20 to 30 feet wide and revealed sparse seagrasses approximately 300 to 500 feet from the shoreline. Halophila decipiens is more abundant and thick in the summer and tends to die off and at its thinnest in the winter. Neither Halophila decipiens nor Halophila johnsonii are threatened or endangered species of seagrasses. The seagrasses provide a significant environmental benefit. The benefits include nutrient recycling in the area and providing habitat for Benthic invertebrates, such as crabs, which are at the bottom of the food chain. Also, other plants grow on the seagrasses, such as algae, and the other plants provide food for other organisms. Manatees eat several seagrasses, including Halophia decipiens but it is not one of the manatees preferred seagrasses. Seagrasses can be adversely affected in two ways. One way is that prop dredging could scar the seagrasses. However, as to the proposed project, the depth of the water in the area of the seagrasses will prevent any adverse affects from prop dredging. The second way that seagrasses can, and will, be adversely affected is being shaded by the proposed dock or by boats tied-up to the dock. The density of the seagrass, pertaining to this proposed project, is thin and low and approximately one percent of actual coverage. In determining whether the proposed project is clearly in the public interest, Respondent DEP uses a balancing test which consists of taking the public interest criteria and weighing the pros and cons of the proposed project. Balancing the adverse impacts on the seagrasses and the positive effects of the public interest criteria, the proposed project is clearly in the public interest. The slips in the proposed project will increase by 12; however, the slips can only be used by sailboats. Since sailboats move slowly, the manatees in the area will not be adversely affected by the proposed project. Neither navigation nor the flow of water will be adversely affected by the proposed project. Further, no harmful erosion or shoaling will be caused by the proposed project. Adequate depths are off of the end of the dock for boats to safely navigate. Shoaling is not a potential problem, and therefore, any potential shoaling which may develop will not adversely affect navigation. The proposed dock will not impact navigation into the Intracoastal Waterway (ICW) because the dock will not extend into the ICW and because Respondent Jupiter Hills will provide navigational aids to guide boaters to access the Atlantic ICW. Furthermore, there is sufficient depth for navigation between the end of the proposed dock and the sandbar where the seagrasses are located. Boat traffic coming from the south will primarily originate from the residences to the south. The proposed dock will force these boaters 200 feet offshore where the natural channel is located. Additionally, the dock will keep boaters further offshore from the riparian land owners to the north, including the Petitioners. To improve the public interest aspects of the project, Respondent DEP proposed that Respondent Jupiter Hills install riprap, which Respondent Jupiter Hills agreed to do. Installation of the riprap will be 367 feet along the perimeter of the proposed dock and in a 10 by 50 foot area along the bulkhead north of the dock. Some shoaling will result but will not affect navigation. The riprap will provide substrate and shelter for marine life. The fishing or recreational values or marine productivity will not be adversely affected by the proposed project. Marine productivity will increase because the sewage pump-out station will improve the water quality which will benefit the Benthic community. The proposed project will be of a permanent nature. Significant historical and archaeological resources will not be adversely affected by the proposed project. The Department of State, which is responsible for historical and archaeological resources, reviewed the Notice of Intent and has no objection to the proposed project. The current condition and relative value of functions being performed by areas affected by the proposed project will be increased and, therefore, benefited. No cumulative impacts are associated with the proposed project. The proposed project is not in an area of pristine shoreline; the area is highly developed. Approximately 1,200 feet to the south of the proposed project is a 270 foot dock with about 50 slips. When considered with the other docks in the area, the extension of the dock in the proposed project will not significantly or measurably further violate the water quality. Respondent Jupiter Hills has provided reasonable assurance that the proposed project is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection issue a final order issuing Permit No. 432170499 to Jupiter Hills Lighthouse Marina. DONE AND ENTERED this 8th day of April, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 8th day of April, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioners Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. Partially accepted in finding of fact 10. Rejected as being irrelevant, or unnecessary. See, conclusion of law 43. Also, partially accepted in findings of fact 19-27, 34-35. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 9. Rejected as being unnecessary. Also, see finding of fact 18. Partially accepted in finding of fact 10. Partially accepted in findings of fact 8, 9, and 10. Partially accepted in finding of fact 9. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 11. See, conclusion of law 46. Partially accepted in findings of fact 9 and 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 18. Partially accepted in finding of fact 31. Partially accepted in findings of fact 18 and 28. Partially accepted in findings of fact 29 and 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 33. Partially accepted in finding of fact 9. Partially accepted in finding of fact 37. Partially accepted in finding of fact 36. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in finding of fact 23. Partially accepted in finding of fact 23. Partially accepted in finding of fact 24. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 20. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 26. Partially accepted in findings of fact 3 and 20. Partially accepted in finding of fact 20. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being not supported by the greater weight of the evidence, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in findings of fact 19-27. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejectd as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Respondent Jupiter Hills' Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 13. Partially accepted in finding of fact 13. Partially accepted in findings of fact 30 and 31. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 29. Partially accepted in finding of fact 34. Partially accepted in finding of fact 36. Partially accepted in finding of fact 13. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in findings of fact 29, 30 and 33. Partially accepted in finding of fact 31. Partially accepted in finding of fact 15. Partially accepted in findings of fact 4, 5, 8, and 11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 9. Partially accepted in findings of fact 5, 8, and 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 9. Partially accepted in finding of fact 16. Partially accepted in findings of fact 9, 14, 15, and 16. Partially accepted in findings of fact 18, 24, and 27. Partially accepted in findings of fact 18 and 28. Partially accepted in finding of fact 28. Partially accepted in finding of fact 18. Partially accepted in finding of fact 22. Partially accepted in finding of fact 21. Partially accepted in findings of fact 20 and 26. Partially accepted in finding of fact 26. Partially accepted in findings of fact 20 and 26. Rejected as being irrelevant, or unnecessary. Rejected as being unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Rejected as being argument, or a conclusion of law. Rejected as being unnecessary, argument, or a conclusion of law. Rejected as being irrelevant, unnecessary, argument, or a conclusion of law. Partially accepted in finding of fact 25. Partially accepted in finding of fact 33 Partially accepted in finding of fact 33. Partially accepted in finding of fact 40. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Rejected as being irrelevant, or unnecessary. Partially accepted in finding of fact 10. Rejected as being unnecessary, or a conclusion of law. Partially accepted in findings of fact 27 and 41. Respondent DEP's Proposed Findings of Fact Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 11. Partially accepted in findings of fact 12 and 13. Partially accepted in finding of fact 15. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in findings of fact 19 and 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 20. Partially accepted in finding of fact 21. Partially accepted in finding of fact 22. Partially accepted in findings of fact 25 and 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 26. Partially accepted in finding of fact 27. Partially accepted in finding of fact 27. Partially accepted in finding of fact 28. Partially accepted in finding of fact 29. Partially accepted in finding of fact 30. Partially accepted in finding of fact 31. Partially accepted in finding of fact 32. Partially accepted in finding of fact 33. Partially accepted in finding of fact 33. Partially accepted in finding of fact 34. Partially accepted in finding of fact 35 Partially accepted in finding of fact 36. Partially accepted in finding of fact 37. Partially accepted in finding of fact 37. Partially accepted in finding of fact 38. Partially accepted in finding of fact 39. Partially accepted in finding of fact 40. Partially accepted in finding of fact 41. NOTE: Where a proposed finding of fact has been partially accepted, the remainer has been rejected as being irrelevant, unnecessary, cumulative, not supported by the evidence presented, not supported by the greater weight of the evidence, argument, or a conclusion of law. COPIES FURNISHED: J. A. Jurgens, Esquire Post Office Box 1178 Winter Park, Florida 32790-1178 Timothy C. Laubach, Esquire Sears and Manuel, P.A. 1218 Mount Vernon Street Orlando, Florida 32803 M.Tracy Biagiotti, Esquire Scott Hawkins, Esquire Jones, Foster, Johnston & Stubbs, P.A. Post Office Box 3475 West Palm Beach, Florida 33402 (Attorney for Jupiter Hills Lighthouse Marina) Lynette L. Ciardulli Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Douglas MacLaughlin Assistant General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue is whether the Respondent's license as a registered pool contractor should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material hereto, Respondent, William Losciale, was a licensed registered pool contractor in the State of Florida, having been issued license number RP-0032951, by the State of Florida, and was the qualifier of Lynn Pools. On or about October 2, 1987, John J. Kerry entered into a contract with Respondent d/b/a Lynn Pools for the Respondent to construct a pool and screen enclosure on Mr. Kerry's property located at 633 South Little John Street in Inverness, Florida. The total cost of the pool and enclosure was $19,600.00. During construction various problems developed. Among them were delays in completion, the failure to obtain the proper permits, the installation of an inadequate and improper filter, the delayed removal of excavated dirt, the gouging up of the homeowner's yard, and the improper positioning of the septic tank after relocation. At the time the pool deck was being designed, the homeowner told the Respondent that it appeared to the homeowner that the deck was slanted towards the house and would cause flooding problems. The Respondent told the homeowner that the Respondent knew what he was doing and no such problem would develop. During construction of the pool, the homeowner pointed out to the Respondent that it appeared that the pool was being constructed higher than the patio which, if true, would also cause flooding problems. Again, the Respondent denied that the pool was being constructed higher than the patio and that flooding problems would occur. During construction, Respondent removed a rain downspout which, prior to construction, was located between the patio and the screen enclosure. The pool patio was then poured without replacing the downspout underneath the patio. As a result of one or more of the foregoing conditions, the homeowner's house was almost flooded on one occasion. Thereafter, the homeowner had to put a drain hole in the patio in an attempt to prevent future flooding. Since completion of the pool, when it rains, rainwater flows down the patio towards the house. Additionally, rainwater is directed from the roof through the gutter onto the patio towards the house and occasionally water overflows from the pool towards the house. While the house has not been flooded, the pool deck floods during certain rains. During construction, the Respondent removed all of the ground wires off electrical fixtures located in the homeowner's yard without replacing them after being requested to replace them by the homeowner. After the deck was poured, it was covered with kool deck. The kool deck was soft and had indentations in it. The Respondent agreed with the homeowner that the deck was bad and that the homeowner should not accept it. The Respondent the replaced the kool deck with river rock. The deck now has ripples in it. The Respondent tried to charge the homeowner an additional $1,200 for the river rock. The homeowner had the river rock installed for an additional $850.00 by a third party. Prior to entering into the contract for the pool and enclosure with Respondent, the home owner told the Respondent that he wanted the biggest water heater available to heat the pool water instantly. When the water heater was being installed, the homeowner questioned the Respondent whether or not the water heater was big enough to meet the homeowner's requirements. The Respondent said that it was. After installation, the heater did not come close to meeting the home owner's requirements. The homeowner then called the manufacturer of the heater and was told that the installed heater was too small. The Respondent, at the homeowner's request, then changed the heater to one that would supposedly heat the pool water faster. It did not. The homeowner then called the heating company again and was told that the new heater was only one size up from the original heater and still would not meet the homeowner's requirements. That heater remains on the homeowner's property and does not meet the homeowner's requirements. Mr. Kerry paid the Respondent $5,500.00 on December 7, 1987, which made a total of $19,000.00 the homeowner had paid the Respondent. The homeowner has paid more than $600.00 in repairing and/or correcting work that was the obligation of the Respondent. Correction of all these problems has been to the homeowner's financial detriment. In the latter part of December, 1987, the Respondent entered into an oral contract with All Wright Aluminum to have All Wright Aluminum install an L- shaped pool enclosure over the pool at the Kerry residence. The total contract price was $5,185.10. Payment for the construction was due within ten days of completion which occurred on January 6, 1988. All Wright Aluminum received a $1,000.00 payment from the Respondent on or about February 2, 1988. That payment was a check from a customer of the Respondent, made payable to the Respondent's order in partial payment on pool repairs which the Respondent made for that customer. The Respondent endorsed that check and made it payable to All Wright Aluminum. On February 15, 1988, All Wright Aluminum in compliance with the mechanic's lien law, filed a valid claim of lien against Mr. Kerry's property in the amount of $4,185.10 for failure of the Respondent to pay All Wright for the construction of the pool enclosure. On May 10, 1988, the Respondent paid All Wright Aluminum $1,000.00 towards that lien. On September 16, 1988, the Respondent paid All Wright $2,000.00 towards the satisfaction of that lien from his personal account. On September 16, 1988, the Respondent gave All Wright Aluminum a personal promissory note in the amount of $1,135.10 for the balance of the lien amount. On that date All Wright Aluminum satisfied its previously filed claim of lien. Respondent has previously been disciplined by the Florida Construction Industry Licensing Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein penalize the Respondent, William Losciale, as follows: Assess a fine of $750 for the violation of Section 489.129(1)(h) Assess a fine of $750 for the violation of Sections 489.129(1)(j) , 489.105(4), and 489.119. Assess a fine of $1500 for the violation of Section 489.129(1)(m) Suspend the license of Respondent for a period of six (6) months. DONE and ENTERED this 19th day of October, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-3296 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Construction Industry Licensing Board 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-20 (1-20). COPIES FURNISHED: Jack M. Larkin Attorney at Law 806 Jackson Street Tampa, Florida 33602 William Losciale 6491 Mobile Street Inverness, Florida 32652 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
Findings Of Fact On May 23, 1978, the Department of Environmental Regulation received Petitioner's application for activities in waters of the State of Florida. According thereto, Petitioner desired to construct approximately 225 feet of riprap seawall and to dredge a channel 50 feet wide by 1,250 feet long in order to provide access for a proposed marina. The application recited that the project involved dredging 3,670 cubic yards of material, and further advised Respondent that the planned motorboat fueling facilities will meet all prevailing codes and regulations, and that an approved holding tank for sewage pump-out will be installed. On May 30, 1978, Respondent forwarded to Petitioner its completeness summary form itemizing the additional information needed in order to determine the merits of Petitioner's application. In Response thereto, Petitioner provided additional information and assured the Respondent that the remainder of the information required would be forthcoming. On June 14, 1978, the Department again requested additional information from the Respondent, some of which information had been previously requested in the May 30, 1978, completeness summary. On September 11, 1978, the Department again wrote to Petitioner requesting the information requested by it on June 14, 1978. Petitioner responded to the most recent correspondence on September 25, 1978, by advising why some of the information had not yet been provided and requesting the Respondent to delay his application in order that he might continue to attempt to obtain the required information. On December 20, 1978, the Department again wrote to the Petitioner requesting the information previously requested on May 30 and June 14 and advising Petitioner that it would issue an intent to deny the application unless Petitioner contacted the Department by January 4, 1979. On January 29, 1979, Respondent received from Petitioner a new application for activities in waters of the State of Florida. This application obviously involved the same project, except that the channel to be dredged is widened to 100 feet and the amount of material to be dredged is increased to 11,700 cubic yards. The information regarding the planned motorboat fueling facilities and the approved holding tank for sewage pump-out remain the same. This application was considered by the Respondent to be a revision of the original application, rather than a new application, for the reasons that some of the required documents were already on file and the filing of a new application would require a new application fee. An additional completeness summary was forwarded to the Petitioner, although possibly not until March 26, 1979. Petitioner was again advised on July 3, 1979, as to the need for additional information, and Petitioner returned that form letter and requested an additional 30 to 45 days to complete his application. On August 6, 1979, Respondent received Petitioner's response to its July 3, 1979, request, and on October 29, 1979, the Respondent again advised Petitioner of additional required information. On April 7, 1980, Respondent directed additional correspondence to Petitioner. On April 8, 1980, the Department completed Its biological and water quality assessment, which assessment contained the recommendation that the project be denied as proposed. On July 2, 1980, Respondent forwarded to Petitioner its intent to deny the project. During the entire time period described above, discussions regarding information needed by the Respondent occurred between Jeremy Craft, one of Respondent's administrators, and both the Petitioner and the Petitioner's engineer. By the time of the final hearing in this cause, Petitioner's application was still not complete. Curtis Kurer, a former employee of the Department of Environmental Regulation, performed an on-site inspection on April 4, 1980, as part of the biological and water quality assessment of Petitioner's project as revised by the January 29, 1979, application filed by the Petitioner. His report extensively analyzes the adverse impacts expected from Petitioner's dredging activities and placement of a marina at the project site. His conclusion is that the project, as proposed, be disapproved. On October 23, 1980, the Respondent received a copy of the report of the Florida Game and Fresh Water Fish Commission, which report also concluded that the application for permit should be denied because of the adverse environmental effects of Petitioner's project.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
Findings Of Fact Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for a variance is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact On or about May 15, 1989, Branch Sunset Associates (Petitioner), the owner of certain property located at 1856 U.S. Highway 19 North, Clearwater, Florida (Section 6-29-16), applied for a variance to eliminate a condition previously imposed by the Development Code Adjustment Board on a prior variance. The property is zoned CC (Commercial Center), and is the site of a strip shopping mall. In March, 1988, the Board granted a variance allowing a tenant in Petitioner's mall, Workplace, to have a building identification sign which is larger than would be allowed under the Code without a variance. In November, 1988, Petitioner was granted a variance for the square footage of a pylon property identification sign with the condition that a Workplace sign not be placed on the pylon property identification sign located at the right of way. Petitioner and this tenant, Workplace, are now seeking removal of this condition in order to allow Workplace to be identified on the existing pylon sign, while leaving Workplace's large building identification sign in place. The Development Code Adjustment Board denied Petitioner's application for variance on June 8, 1989, and Petitioner timely filed this appeal of the Board's decision. Workplace is located approximately 800 feet off of U.S. Highway 19, and due to this distance, the prior variance of 97 square feet was granted in March, 1988, to allow a business identification sign of 225 square feet. The Code allows business identification signs up to 128 square feet without a variance. The letters spelling out "Workplace" are from 4 to 6 feet in height. Since opening in May, 1988, Workplace has experienced a steady growth in its business, and now completes approximately 1000 transactions per day. It is an office products store, and is open seven days a week. When the condition was placed on the variance for the pylon identification sign in November, 1988, the property owner agreed to this condition. At this time, it is primarily the tenant, Workplace, which is seeking this variance to eliminate the condition agreed to in November, 1988, by the property owner. Workplace seeks to be allowed to be included on the property identification sign, but is unwilling to immediately conform to Code on its building identification sign, a variance for which was granted in March, 1988, if this currently sought variance is approved. Thus, Workplace seeks to retain its variance for the size of its building identification sign, while also being included on the pylon property identification sign, which is larger than otherwise allowed due to the November, 1988, variance. The reason that the Development Code Adjustment Board approved the variance for Workplace in March, 1988, was that there was no property identification sign on site at that time, and the store was to be located so far off the right of way. This was a newly opening mall, and Workplace was one of the first new tenants to open for business. There are some prior tenants on this property that had business identification signs on their buildings that are in excess of the square footage allowed by the Code, but these are prior nonconforming signs which must be removed or brought into compliance by October, 1992. Section 134.015(c). However, when the property owner sought the variance in square footage limits to erect a pylon property identification sign in November, 1988, the Workplace business identification sign was already in place. Rather than allow Workplace to benefit from two variances, the Board conditioned the November, 1988, variance on precluding Workplace from being shown on the pylon sign. This was a reasonable condition under the circumstances, and was agreed to by the property owner. There was no showing of hardship on behalf of Workplace since business has been very good, and since any concerns about distance from the right of way were fully addressed by the March, 1988, variance.
The Issue The issues for determination in this case are whether an unpermitted seawall and an unpermitted catwalk constructed by Respondents Frank and Patricia Baird qualify for exemption from permitting under Rule 62-312.050, Florida Administrative Code.
Findings Of Fact Petitioners, Stephen A. Spoeth, and Olive Faye McCall Spoeth, reside at 14038 Pine Street, Hudson, Pasco County, Florida. Mrs. Spoeth purchased the property in 1989 prior to Petitioners' marriage and has lived at this residence since that time. Mr. Spoeth has resided at the property since 1991. Petitioners' residence is located on lot 14 in the subdivision plat. In addition to their residence (lot 14), Petitioners own another lot, (lot 10), directly across Pine Street from their residence. Lot 10 borders the end of a canal. Petitioners have constructed a 10.6 foot by 11.8 foot dock that extends approximately 16.5 feet into the canal from Lot 10. Petitioners also own property adjacent to lot 10 on the south side of the canal. Respondent, Patricia Baird, resides at 6732 Udell Lane, Hudson, Pasco County, Florida. Respondent and her husband, Frank Baird, purchased this property in 1991. Frank Baird is now deceased. Respondent owns lots 8 and 9 as identified in the subdivision plat. Respondent's residence is located on lot 8. Both lots 8 and 9 border the north side of the canal. Lot 8 has 75 feet of waterfront, and lot 9 has 70 feet of waterfront. Lot 9 abuts Petitioners' lot 10 at the end of the canal. The canal in question is a dead-end canal located in a residential community in Pasco County. The canal was artificially created on historically upland property. The canal runs east to west, is rectangular in shape, and is approximately 70 feet wide, as measured from north to south. The canal accesses into Hudson Creek which then accesses into the Gulf of Mexico. The water in the middle of the canal is generally five feet in depth; however, the depth of the water in the canal varies with tidal fluctuations. During low tides, the water over two feet in depth is shared equally between both sides of the canal channel. At normal tide flow, water at the three-foot depth level is also shared equally between both sides of the canal. Water at the five-foot depth level is slightly closer to the north part of the canal channel next to the Baird's property. Since 1991, the Bairds have constructed four structures on their property: a seawall; a fixed dock; a floating dock; and a catwalk. The seawall runs the length of the waterfront on both lots 8 and 9. A six-foot portion of the seawall was constructed on Petitioners' property (lot 10), and was subsequently removed as a result of a prior proceeding between these parties. The Baird seawall is level and flush with the adjoining seawall constructed on waterfront lot 7 that is owned by Mary-Jane Prack. The Baird seawall was constructed in accordance with generally acceptable building practices. On lot 8 the Bairds constructed a 20 foot by 16 foot fixed dock adjacent to the seawall. The fixed dock was constructed in accordance with generally accepted building practices. On lot 9 the Bairds placed an 8 foot by 12 foot floating dock with an 11.7 foot catwalk. This structure extends approximately 19.7 feet into the canal. The floating dock was constructed in accordance with generally accepted building practices. In 1993 the Bairds added a 30 foot by 18 foot by 30 foot L-shaped catwalk adjacent to the existing dock on lot 9. The catwalk was constructed in accordance with generally accepted building practices. Petitioners have one boat tied to their dock on lot 10. The Petitioners also keep a paddle boat and a canoe at that location. Prior to the construction of the Baird's catwalk, Petitioners tied their boat with the bow pointing north. This allowed the Petitioners to access water which was generally three feet in depth. Subsequent to the construction of the catwalk, Petitioners tie their boat with the bow to the south. The water in this part of the canal is shallower than on the north side, and on some occasions when the tide is extremely low, the bow of Petitioners' boat rests in mud. Such extreme low tides usually occur in the spring of the year, and generally happen seven days a year. On such occasions Petitioners experience great difficulty moving their boat into the canal. During such low tides Petitioners also have difficulty launching their paddle boat and canoe. The evidence is consistent that private boats navigate the canal. Moreover, Mary-Jane Prack testified that not only private vessels, but also commercial fishing vessels, currently use the canal on a regular basis during the day and the night. Thus, there is no question that the seawall and catwalk do not impede navigation of the canal. Water quality in the canal was not tested prior to the construction of the seawall and catwalk on the Baird's property, and there is no basis to evaluate the impact of the construction of the Baird's seawall and catwalk on water quality; however, except for the initial period of construction, the building of a seawall, fixed dock, floating dock, and catwalk in accordance with generally accepted building practices does not have an adverse effect on water quality in a residential tidal canal. The Baird seawall is level with the surrounding property and does not adversely affect runoff or flood control. The Baird catwalk is constructed to allow water flow and does not adversely affect runoff or flood control. On September 22, 1994, DEP issued a letter determining that the Baird unpermitted seawall and unpermitted catwalk met the exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. The DEP decision in this regard reversed a prior warning letter issued by DEP on December 16, 1993, to the Bairds stating that the unpermitted seawall and unpermitted catwalk were in violation of the DEP rules. The warning letter was issued by DEP under the mistaken apprehension that the canal had been constructed on sovereign state submerged land, when in fact the canal was artificially constructed on historically uplands property.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Environmental Protection issue a Final Order upholding the Department's determination that the unpermitted seawall and unpermitted catwalk located at 6732 Udell Lane, Hudson, Pasco County, Florida, meet the exemption criteria set forth in Rules 62-312.050(1)(g) and (h), Florida Administrative Code. RECOMMENDED in Tallahassee, Leon County, Florida, this 13th day of June, 1995. RICHARD HIXSON 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 13th day of June, 1995. APPENDIX Petitioner's Proposed Findings: Rejected except to the extent that the bow of Petitioners' boat at extreme low tides sits in the mud. Rejected Rejected Rejected Rejected as irrevelant Rejected as irrelevant Rejected Rejected Respondent Bairds' Proposed Findings: 1 - 7. Adopted and incorporated Respondent DEP's Proposed Findings: 1 - 38. Adopted and incorporated COPIES FURNISHED: Virginia B. Wetherell, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen A. Spoeth and Olive McCall Spoeth 14038 Pine Street Hudson, Florida 34667 Edson L. Garrabrants, Jr., Esquire 6008 Main Street New Port Richey, Florida 34653 Christine C. Stretesky, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
