Findings Of Fact By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12) The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation) The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene) The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12) After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7) By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13) In their prehearing and posthearing stipulations, the parties agreed to the following: That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. The proposed bridge will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grass- flats suitable as nursery or feeding grounds for marine life, and establish[ed] marine soil(s] suitable for producing plant growth of the type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests. If the permit is issued, it shall be issued with the following conditions: Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown) The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther. There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)
Recommendation That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM 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 30th day of November, 1983.
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
The Issue Whether Petitioner has standing to administratively challenge, on the ground that navigation will be adversely affected, the Department of Environmental Regulation's determination, announced in its May 2, 1989, Notice of Permit Issuance, to issue Permit No. 061594966 authorizing Respondent Avatar Corporation to conduct dredge and fill activities in the Northwest Channel in Broward County, Florida, in connection with the construction of a fixed span bridge traversing that waterway? Whether its challenge was timely instituted? Whether the permit should be issued and under what additional conditions, if any?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a homeowners association. Its 300 dues-paying members 1/ own homes in an area of the City of Hollywood bounded on the north by Sheridan Street, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by U.S. Highway One. Avatar is a developer. It owns land in the City of Hollywood that it has platted and now desires to develop into a residential community known as Harbor Islands consisting of, among other things, 3,175 dwelling units, a hotel, and retail stores. In addition, four parcels of land (Parcels 2, 3, 11 and 11A) within the planned community, totaling approximately 30 acres, have been dedicated to the City of Hollywood for use as public park land. Avatar's right to develop this land for residential use was affirmed in the final judgment entered in Broward County Circuit Court Case No. 72-4252 on September 20, 1974, as supplemented by the supplementary final judgment entered in that case on December 17, 1981. Neither Petitioner, the Department, nor any other state agency was a party in Broward County Circuit Court Case No. 72-4252. The land that Avatar seeks to develop is situated on three islands and is bounded on the north by the Washington Street Canal, on the south by the City of Hallandale, on the east by the Intracoastal Waterway and on the west by the DeSoto Waterway. Two waterways, the Venetian Waterway and the Northwest Channel, run through the interior of the planned Harbor Islands development (Development). The Venetian Waterway lies between the two southernmost of the Development's three islands. From its northern terminus at the Northwest Channel, it follows a southerly course beyond the southern boundary of the Development and into the City of Hallandale. On its southward trek, it passes under two bridges, one within the Development and one in the City of Hallandale. These bridges are of the fixed span variety and both have a vertical clearance of approximately ten to 12 feet. The Northwest Channel separates the northernmost of the Development's three islands from its other two islands while connecting the DeSoto Waterway with the Intracoastal Waterway. It is a man-made canal, the construction of which was the subject of a 1969 agreement between Avatar's predecessors in interest, who will hereinafter be referred to as the "Mailmans," and the City of Hollywood and Broward County, among others, 2/ that settled a lawsuit the Mailmans had filed. Numbered paragraphs 5, 6, 12 and 15 of the agreement provided as follows: NORTH AND SOUTH CHANNELS. The MAILMANS agree to construct and perpetually maintain at their expense, a channel or canal, running from the southerly portion of the DeSoto Waterway, as shown on Exhibit B, attached hereto, the same to be located in the vicinity of the present existing channel or within 500 feet south thereof, and in a like manner to construct and maintain a similar channel or canal, running from the northerly portion of the DeSoto Waterway, easterly to and connecting with the Intracoastal Waterway as shown on Exhibit B, attached hereto. Said channels shall have a minimum depth of 10 feet and shall be sufficient for all vessels requiring a clearance of 16 feet, and a minimum width of 100 feet. The parties acknowledge that the purpose of said channels or canals is to provide the general public the unobstructed and perpetual means of navigable access to the Intracoastal Waterway from any part of the DeSoto Waterway both north and south of Northeast Ninth Street. BRIDGES. The parties agree that the MAILMANS shall have the right to construct bridges, at their expense, across the aforesaid channels described in paragraph 5, hereinabove, together with necessary approaches and abutments. Said bridges shall be either "turntable" or stationary bridges, of a minimum height of 16 feet, as measured at high tide, with a clear span of not less than 30 feet. The parties further agree that the MAILMANS shall have the right to construct at their expense a bridge across DeSoto Waterway at Northeast Ninth Street, together with necessary approaches and abutments, which bridge shall be the only one not required to have clearance of 16 feet. Said bridge, together with necessary approaches and abutments, if constructed, shall be of such size and construction as shall not block, obstruct or interfere with the use of any part of Diplomat Parkway or Northeast Ninth Street lying west of DeSoto Waterway as each public thoroughfare presently exists. The parties further agree that under no circumstances shall any bridge be constructed so as to hinder or obstruct perpetual and navigable access of vessels requiring a minimum clearance of 16 feet at mean high tide, to the Intracoastal Waterway from any part of DeSoto Waterway lying North and South of Northeast Ninth Street. The MAILMANS agree that in the event of the aforesaid construction, they shall permanently maintain said bridges in safe working order. Said parties further agree to provide, at their expense necessary personnel to operate all turntable bridges at all times. 3/ 12. COVENANTS RUNNING WITH THE LAND; RECORDING. The parties agree that all of the covenants contained in Paragraphs 4, 5, 6, 7, and 8, herein are to be construed as running with the land; that a copy of this Agreement is to be recorded among the public records of Broward County, Florida; and that appropriate reference or specific designation of this agreement is to be made in any instruments of conveyance or development by deed or plat or otherwise, which shall be executed by the MAILMANS, their successors or assigns, as to any property described on pages 1 or 6 hereinabove. 15. BINDING EFFECT. All rights and obligations under this Agreement shall be binding upon and inure to the benefit of and be enforceable by successors, assigns, nominees, heirs and personal representatives of the parties. As the plat for the Development reflects, the Northwest Channel is privately owned by Avatar and has not been dedicated to any governmental entity. 4/ The depth of the water in the Northwest Channel ranges from approximately ten to 12 feet at its shallowest point to approximately 25 feet at its deepest. At present, there are no bridges crossing the Northwest Channel. The Northwest Channel is the only means of access to the Intracoastal Waterway for boats using the DeSoto Waterway north of the Atlantic Shores Boulevard (Northeast 9th Street) bridge in Hallandale (which portion of the waterway will hereinafter be referred to as the "Northern DeSoto Waterway") and the Washington Street Canal west of the culvert crossing at Three Islands Boulevard (which portion of the waterway will hereinafter be referred to as the "Western Washington Street Canal") that are too tall to safely navigate under the Atlantic Shores Boulevard bridge, which is a fixed span bridge and has a vertical clearance of approximately six to eight feet. 5/ The Northern DeSoto Waterway and the Western Washington Street Canal are used by pleasure boaters and water skiers. Neither watercourse has a high volume of traffic. Approximately 35 of Petitioner's members own waterfront homes adjacent to the Development on the other side of either the Washington Street Canal (which homeowners have a Washington Street address) or the DeSoto Waterway (which homeowners have a Diplomat Parkway address). Most, if not all, have docks behind their homes. 6/ They do not have to rely on marine transportation to reach their homes, however, inasmuch as they have easy access to their property by land. One such homeowner is Kenneth Hark, who lives at 1415 Diplomat Parkway. Hark owns a boat, the "Marcy," that he docks behind his home on the DeSoto Waterway south of where it meets the Northwest Channel. The "Marcy" is approximately 34 feet long. With its outriggers extended, it is approximately 30 feet high. It is approximately 18 feet high with its outriggers lowered. Hark uses his boat approximately once a week. Because of the height of his boat, he must traverse the Northwest Channel to get to the Intracoastal Waterway. Rowland Schaefer is another member of Petitioner who lives along the DeSoto Waterway and docks his boat behind his home. His boat is approximately 60 feet long, 17 to 18 feet wide and 25 to 28 feet high. There are other boats that are regularly docked on the Northern DeSoto Waterway and the Western Washington Street Canal. One of these boats is the "My Lady," which is approximately the same height as Hark's boat. Homeowners living along the Northern DeSoto Waterway and the Western Washington Street Canal also occasionally have visitors who arrive by boat. For instance, Hark's next door neighbors have an adult son who, on occasion, comes to their home in a sailboat that is approximately 40 feet in height. Another boat that brings visitors to the neighborhood is a vessel that is approximately 80 to 90 feet long and 25 to 30 feet high. About three to five times a year this boat docks behind the Cowan residence. In mid-December of 1988, Avatar submitted a "short form" application to the Department for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel at Three Islands Boulevard, where the average depth of the water is approximately 15 feet. The proposed bridge would connect the northernmost of the Development's three islands with the southern island that lies to the west of the Venetian Waterway. The project and its anticipated impacts were described in Avatar's response to Item 10 on the application form as follows: The applicant proposes to construct a fixed bridge approximately 220 feet long and 71.25 feet in width to provide access for development of the northernmost island of the Harbor Islands Development community. The proposed bridge will have a vertical navigational clearance of 17.04 feet above mean high water, 19.34 above mean low water, and a horizontal clearance of 51.83 feet between pile caps. There will be no dredging and filling associated with the proposed work, and no significant encroachment of the floodplain will occur. Benthic vegetation along the slopes of the Northwest Channel consist primarily of green algae, including sporadic stolons of Caulerpa sertularioides. In deeper portions of the channel, where light is limited, the benthic substrate is barren. Water quality impacts will be temporary in nature, with turbidity controls such as but not limited to turbidity curtains implemented to ensure that turbidity values do not exceed 29 N.T.U.'s above background. Item 5 on the application form requested the "NAME AND ADDRESS INCLUDING ZIP CODE OF ADJOINING PROPERTY OWNERS WHOSE PROPERTY ALSO ADJOINS THE WATERWAY." Avatar's response was "None." Aside from Avatar there were no other private property owners who owned land adjoining the Northwest Channel. Accordingly, Avatar's response to Item 5, to the extent that it conveyed such information, was accurate. Avatar's application was processed and reviewed by staff in the Department's Southeast District office, who in February of 1989, sent Avatar a letter advising it that the application was incomplete and that additional information and clarification was needed. The letter provided as follows with respect to Avatar's response to Item 5: Item No. 5 was not completed. Please provide the name and address including zip code of the nearest adjoining property owners with waterfront residence. On or about March 8, 1989, Avatar submitted a written response to the Department's February, 1989, letter. The response stated the following regarding "adjoining property owners:" The proposed project is located in the center of a large piece of property owned exclusively by [Avatar]. There are no adjoining property owners. The nearest potential adjoining property owners are located over 2000 feet from the proposed project site. In fact, Avatar did not own all of the property within the Development. It had dedicated certain land to the City of Hollywood and therefore no longer owned the entire property. Among these parcels of land that Avatar had dedicated was Parcel 11. Parcel 11 is located on the northernmost island of the Development a short distance (approximately 250 feet) to the north of the site of the proposed bridge. Furthermore, there were private homeowners with waterfront residences on the DeSoto Waterway and Washington Street Canal, including members of Petitioner, who also owned property less than 2,000 feet from the proposed project site. The Department did not forward a copy of Avatar's application to these or any other homeowners. Neither did it require Avatar to publish notice of the filing of the application. It, however, did send a copy of Avatar's application to the Mayor of the City of Hollywood and the Chairperson of the Broward County Board of County Commissioners, accompanied by a letter advising them of a local government's right to timely file objections to an application for a dredge and fill permit and to request an administrative hearing after receiving the Department's notice of intent to issue the requested permit. Neither the City of Hollywood nor Broward County filed any objections to Avatar's application. Moreover, no member of the general public commented on the application. On May 2, 1989, the Department issued a notice of its intent to grant Avatar's application for a dredge and fill permit (Permit No. 061594966). The notice explained that a person whose substantial interests were affected by the granting of the permit had a right to file a petition for an administrative hearing within 14 days of his or her receipt of the notice and that the Department's issuance of the permit would be considered "final" if no such timely petition was filed. A copy of the notice was mailed to Avatar, as well as the United States Army Corps of Engineers, the Department of Natural Resources, the Broward County Environmental Quality Control Board and the Broward County Property Appraiser. Neither Petitioner nor its members were sent a copy of the notice. There was no publication of the Department's notice. On August 30, 1991, Avatar requested that Permit No. 061594966 be modified to reflect a reduction in the length of the permitted bridge from 220 feet to 130 feet. The plans submitted by Avatar in support of its request indicated that the modified structure would have a vertical clearance of 17.1 feet at mean high water and 19.4 feet at mean low water and a horizontal clearance of 52 feet. In October of 1991, the Department approved the requested permit modification. Avatar was notified of the Department's decision by letter, a copy of which was sent to the United States Army Corps of Engineers, the Department of Natural Resources and the Broward County Office of Natural Resource Protection. The letter described the modification as "minor." Pilings that will support the bridge have already been driven and are in place. If construction of the bridge is completed in accordance with the plans approved by the Department, some boaters who now use the Northwest Channel as their sole means of travelling back and forth between the Northern DeSoto Waterway and Western Washington Street Canal to the west and the Intracoastal Waterway to the east will no longer be able to do so because their boats will be unable to safely navigate under the bridge. While the bridge will not be able to accommodate all of the boats that currently use the Northwest Channel, its vertical clearance is greater than that of the typical bridge crossing a canal in a residential area. To redesign the bridge to raise its vertical clearance several feet would require lowering the design speed to approximately ten to 15 miles per hour, which would pose a potential safety hazard. Navigational problems associated with vertical clearance would be eliminated if Avatar constructed a turntable bridge or a drawbridge instead of a fixed span bridge. Turntable bridges and draw bridges, however, are considerably more costly to build and maintain than fixed span bridges of comparable size. Furthermore, because of concerns regarding incompatibility, they are generally not constructed in residential neighborhoods. Petitioner first became aware of the issuance of Permit No. 061594966 in the spring of 1992, when two of its members visited the Department's Southeast District office and reviewed the contents of the Department's file on the permit, including Avatar's application for the permit and the Department's notice of its intent to grant the application. 7/ After its Board of Directors voted to challenge the issuance of the permit and the membership assented to launch such a challenge, Petitioner filed its request for a formal hearing on the matter. 8/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order granting Avatar's application for a dredge and fill permit to construct a fixed span bridge over the Northwest Channel as the Department proposed to do in its May 2, 1989, notice of intent to issue Permit No. 061594966. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of December, 1992. STUART M. LERNER 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 31st day of December, 1992.
The Issue The basic allegations of the complaint having been proven or admitted, the sole question at hearing was one of mitigation.
Findings Of Fact Rivers is a licensed general and a licensed pool contractor. All the complaints against Rivers arose in relationship to his pool contracting activities. Rivers did begin construction of two pools in Levy County without first obtaining a building permit as required by the Levy County Building Code, a certified copy of which was identified by the Levy County Building official. Rivers paid a late fee in both instances. Although in one instance all inspections were made, in the second instance no inspections were possible because construction was essentially complete when the construction was discovered by the Levy County Building official. Rivers did fail to pay materialmen on two pools although he received payment in full for the jobs. His failure resulted in materialmen's liens being placed on the property, although Rivers provided each owner a written statement that all bills had been paid. Rivers admitted that he had not paid the materialmen because he lacked funds to do so. His contract with both parties for construction of a specified pool contained a provision stating that he would provide them an affidavit that all labor and material had been paid prior to receipt of final payment on the contract.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Residential Pool Contractor's License and General Contractor's License of Norman Rivers be suspended for a minimum of ninety (90) days and that thereafter be reinstated upon his satisfying the Board of his ability to meet his financial obligations. DONE and ORDERED this 15th day of September, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488 9675 COPIES FURNISHED: Mr. J.K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211 Mr. Norman Rivers 1710 South East 19th Street Ocala, Florida 32670
The Issue At issue herein is whether or not the City's application to open an at- grade crossing at NE/NW 2nd Street, Boca Raton, Florida (Milepost 324 + 2350') should be granted and is in keeping with the dictates of Section 338.21, Florida Statutes, and Chapter 14-46.03(2)(a), Florida Administrative Code.
Findings Of Fact Based on a careful consideration of the testimony of the witnesses and their demeanor while testifying, the documentary evidence and the other arguments of counsel, ,the following relevant facts are found. The City of Boca Raton filed an application to open an at-grade railroad crossing at NE/NW 2nd Street, which is situated at Railway's Milepost 324 + 2350' and the Florida East Coast Railway Company filed an application to close Palmetto Park Road at-grade crossing, which is situated at Milepost 324 + 2988'. Due to the close proximity of the two crossings, a joint hearing was held. The Railway, in filing its application to close Palmetto Park Road, noted that its application was alternative to and contingent upon the granting of the City's application to open NE/NW 2nd Street. The Railway's position is that one of the two crossings is adequate. The Applicant's position respecting this application was presented through Mr. John Carroll, City Engineer since approximately September of 1977, and Mr. Joseph Pollack, P.E., of Kimley-Horn and Associates. Palmetto Park Road is a major east/west arterial road serving the City. The most recent traffic counts for Palmetto Park Road in May, 1978, indicate a peak traffic count of approximately 24,000 vehicles per day at the intersection of Palmetto Park Road, Dixie Highway and the existing crossing. This represents a volume/capacity ratio for that intersection of approximately 1.35 or approximately 35 percent greater than the designed capacity for the intersection. Such a condition is known as "forced flow." Based thereon, the City argues that there have been an increasingly high number of vehicle-to- vehicle and vehicle-to crossing gate accidents at the subject intersection and crossing. Thus, for example, the City points out that during calendar year 1977, the most current year that statistics were available, there were eighteen accidents at the intersection and crossing, with seven of those accidents directly involving the crossing gates closing on vehicles waiting to clear the crossing (See City Exhibit 10). According to Dr. Carroll, several additional crossing gate accidents were never reported. The West Palm Beach Urban Area Transportation Study (WPBUATS) indicates a 1955 traffic volume on Palmetto Park Road of 18,000 vehicles per day and 1990 traffic volume of 26,000 vehicles per day (City's Exhibits 4A, 4B, 5A and 5B). Such projections are based upon the City's construction of alternate east/west corridors which are not now in existence and, if such alternative routes are not constructed, the above projected traffic volume increases would be greater. Without question, the NE/NW 2nd Street project would reduce congestion on Palmetto Park Road. Testimony introduced during the hearing reveals that the NE/NW 2nd Street project will draw approximately 4,000 vehicles per day from Palmetto Park Road. If such reduction results, the volume/capacity ratio on Palmetto Park Road at the existing crossing and Dixie Highway intersection would reduce the current "forced flow situation to its approximate designed capacity. During the hearing, testimony was submitted to the effect that in addition to eliminating the "forced flow" condition at Palmetto Park Road, the subject project will facilitate emergency vehicle response time, would be more convenient to citizens desiring access to the central business district and would, if calculated, result in a fuel consumption saving. The NE/NW 2nd Street project was first envisioned by the City in 1964 and since that date, the City has acquired substantial amount of the necessary rights-of-way to accomplish completion of this project. Specifically, in 1973, the City acquired rights-of-way between Federal Highway and First Avenue, and in 1974 and 1976, the City required certain developers to dedicate other necessary rights-of-way. In September, 1977, the City's electorate approved a bend issue totaling $1,770,000 for road improvements, which included $448,000 for the NE/NW 2nd Street project. Mr. Pollack testified credibly that his firm designed the NE/NW 2nd Street project and the crossing to meet all applicable design safety criteria. The Railway's opposition to the opening of a crossing at NE/NW 2nd Street was based partially upon the close proximity of the proposed crossing to the existing crossing at Palmetto Park Road and also upon the Railway's opinion that opening of the NE/NW 2nd Street crossing would do little in terms of reducing the over-utilization of the crossing at Palmetto Park Road. 10. It was noted during the hearing that by 1990, the average traffic vehicle using the Palmetto Park Road crossing will approach 30,000 vehicles. It is undisputed that the additional crossing at NE/NW 2nd Street will draw vehicles from the Palmetto Park Road crossing. In terms of alternative routes, the City conducted feasibility studies which reveal that either in terms of widening Palmetto Park Road or alternatively constructing an above-grade crossing at the Railway's mainline track, both alternatives are prohibitive in terms of cost and thus, not feasible. The prohibitive costs stem from the fact that the property abutting Palmetto Park Road in the close proximity of the existing crossing is presently developed for commercial uses. Finally, all parties agreed that regardless of whether the proposed NE/NW 2nd Street crossing application was granted, the closing of Palmetto Park Road would be disastrous.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the application of the City of Boca Raton to open an at-grade crossing at NE/NW 2nd Street (Milepost 324 + 2350') be GRANTED. It is further recommended that the application of the Railway to close the Palmetto Park Road at-grade crossing (Milepost 324 + 2988') be DENIED. RECOMMENDED this 25th day of June, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact JTA and DOT seek a complex air source permit from DER for construction of the Dame Point Bridge project in Jacksonville, Duval County, Florida. The application for the permit and supporting documents were filed and considered by DER in evaluating the permit. The proposed project is a 10.94 mile segment of a proposed easterly bypass around the City of Jacksonville. The project consists of a limited access, four and six-lane expressway which will become a portion of the Interstate 295 bypass system for Jacksonville. It will principally serve through traffic around urbanized Jacksonville and resident north-south traffic. The project extends from Monument Road, south of the St. John's River, to existing I-295 at U.S. 17, north of the River, and includes a six lane bridge over the St. John's River in the vicinity of Mill Cove and Dame Point. In addition to the bridge over the St. John's River, approximately 10,000 feet in length, the project includes seven grade separated intersections where major arterial roads serving urbanized Jacksonville intersect the project. The project will traverse high to medium density residential neighborhoods south of the St. John's River and medium to low density residential neighborhoods, developing industrial centers, and some rural property north of the River. Pursuant to Section 403.182, Florida Statutes, DER by formal agreement may delegate preview and evaluation of permit applications to qualified local programs. Such an agreement has been in force between DER and the Duval County Bio-Environmental Services Division since February 9, 1976. In compliance with that agreement, the Duval County Bio-Environmental Services Division reviewed and processed the Dame Point State Road 9-A extension application for a complex air source permit, determined that reasonable assurances of non-violation of ambient air quality standards was provided, and certified that conclusion to DER. DER then published a letter of intent to issue the permit on August 29, 1978. The Final Environmental Impact Statement (FEIS) for the project which was submitted with the application concluded that the project would be beneficial to the economic growth of the area by providing an improved transportation network. In addition, testimony established that the project would be needed in the near future by virtue of increasing traffic demand. Approximately forty to sixty percent of the north-south through traffic in the Jacksonville area is expected to use the facility. The proposed project would provide an efficient bypass for this traffic and could divert 7,000 to 10,000 vehicles per day from the downtown Jacksonville area upon completion. Evidence established that, as a direct result of construction of the project, downtown traffic congestion would be relieved; existing industry would receive more efficient transportation service; commuter traffic from southeastern Jacksonville to northern Jacksonville would be reduced by miles; transportation routes to education facilities would be improved; and tourist traffic would be routed around downtown Jacksonville. The benefits to costs ratio of the project is positive in that for every dollar spent to construct the facility, $2.80 might reasonably be expected to be returned to the community in the form of increased economic activity and more efficient transportation. Increased traffic demand in the Jacksonville-Duval County area is of such magnitude that, according to testimony at the final hearing, in the year 2000 the demand to cross the St. John's River is expected to exceed the capacities of all existing bridges, plus the proposed facility, if constructed, and another bridge crossing south of the city. JTA and DOT prepared projections for average anticipated future use of the project using the most recent, accurate and acceptable information available. Initial projections were based upon the Jacksonville Urban Area Transportation Study Network, 11WC. When the network was revised in 1977, JTA, in coordination with the Jacksonville Area Planning Board, revised the projections to be consistent with the updated Transportation Network plan for Jacksonville. This planning information, plus extensive historical data on population growth, urban development and changing land use patterns in the area of the project, were utilized to project future vehicle use for the project. The evidence clearly establishes that the proposed project generally will relieve downtown traffic congestion by diverting traffic around the city. Traffic projections indicate that the total vehicle miles traveled daily in Duval County might be reduced by as much as 600,000 miles if the project is constructed. Most of this reduction would result from eliminating circuitous routes through the downtown area. Traffic projections were in part based upon past experience with similar projects over a 10-year period, and included a factor for added traffic which might be generated by construction of the facility. The proposed project will be linked to I-95 north of Jacksonville, and will serve the southeast area of the city and provide a connection to the industrial center around Imeson Park to the north, in addition to offering a shorter and speedier route to local beaches. Average vehicle speeds through the open roadway portions of the project, and through intersections, were calculated according to commonly accepted traffic engineering methods. The evidence establishes that general roadway speeds should average 55 miles per hour through 1992, with a potential decline to 50 miles per hour by the year 2002. Average intersection speeds should vary from 45 to 20 miles per hour over the same time period. These calculations are based upon well-recognized and, long accepted traffic engineering data contained in the Highway Capacity Manual, 1965 edition. The method employed in these calculations is that commonly used by DOT throughout the State of Florida, and included consideration of potential future congestion as well as probable signalization of traffic at some intersections. The evidence establishes that JTA and DOT accurately analyzed roadway and intersection speeds for the proposed project according to accepted traffic engineering methods, and that reasonable predictions of air pollution loading along the project corridor based upon these speed calculations can reasonably be relied upon to establish non-violation of ambient air quality standards. Further, evidence in the record establishes that traffic speeds through the toll plaza to be constructed as a part of the proposed project were adequately analyzed. Average speeds and queuing through the toll booth facility were calculated using accepted average daily traffic projections for the project and assumed a 1,000 foot zone of deceleration/acceleration on either side of the toll booth. These calculations included deceleration, queuing, stopping at the toll booth, and acceleration away from the toll booth facility. The method employed in formulating these calculations followed recognized techniques outlined in the Transportation Traffic Engineers Handbook. DOT has asserted in the permit application here under consideration that the construction and operation of the proposed project will not violate DER ambient air quality standards. Using the traffic projections and average vehicle speeds discussed above, DOT utilized various computer modeling techniques which analyzed and modeled projected worst one-hour and eight-hour concentrations of carbon monoxide along the roadway and around critical intersections and the toll plaza. The Mobile I computer model was used to predict emissions of automobile related pollutants based upon the aforementioned traffic data. Included in the Mobile I computer program were various factors including highway speed, traffic volumes, vehicle mix, "cold" versus "hot" starts, ambient temperature, and pavement height. Emission factors generated from this computer model result in predicted pollutant loadings in grams per vehicle mile. In addition, another method, AP 42, Supplement 5, was also utilized to generate comparable emission factors. Data obtained from the Mobile I computer program and from AP 42, Supplement 5, is then programmed into another computer model, Caline II, which is a basic diffusion model designed to estimate concentrations of carbon monoxide at various points along and distances from the roadway. This computer model is a mathematical equation that simulates or predicts the concentration of pollutants at various points after they are released from their source and allowed an opportunity to mix with the atmosphere. The Caline II model can only project future expected carbon monoxide concentration levels. No computer model was used to project expected concentrations of hydrocarbons, nitrogen oxides, photochemical oxidants or other pollutants expected to be associated with the project because no such model is presently available to accurately project concentrations of those pollutants. This is due, at least in part, to the greater reactivity of those pollutants with other elements in the atmosphere. Factors included in the Caline II computer model in order to predict expected concentrations of carbon monoxide along a line source include traffic volume; a "K" factor, which is a percentage of daily traffic at a given point in "peak hour" conditions; highway width and height; wind speed; stability class; and wind direction. The result of this computer program is an expected "worst case" condition for one-hour and eight- hour concentrations of carbon monoxide along the roadway for the years 1982 and 1992. Computer program results, which included background ambient conditions for eight-hour concentrations, affirmatively established that expected concentrations of carbon monoxide will be considerably less than the DER one- hour standard of 40 milligrams per cubic meter, and the eight-hour standard of 10 milligrams per cubic meter. These DER standards were not exceeded at any of the intersections or along the roadway at any point. As indicated above, no computer modeling technique was utilized fox hydrocarbons, nitrogen oxides, photochemical oxidants, sulphur dioxide or total suspended particulate matter. Estimates concerning these pollutants were based upon AP 42, Supplement 5, which is a document promulgated by the United States Environmental Protection Agency, and the Mobile I computer program. These methods do not predict concentrations, but instead deal only with total emissions. The result of this analysis was that, given background levels of hydrocarbons in Duval County, the project, if constructed, either in whole or in the segment which is the subject of this permit application, hydrocarbon levels may be expected to be reduced, at least in part due to the increased average speed of vehicles using the proposed facility. In addition, since hydrocarbons appear to act as a precursor to the formation of photochemical oxidants, any reduction in the emissions of hydrocarbons can also be expected to reduce the levels of photochemical oxidants, which are a particular problem in Duval County, which has been designated a "non-attainment area" for photochemical oxidants. Further, data derived from AP 42, Supplement 5, and Mobile I, together with data from local monitoring programs, established that no violations of ambient standards are to be expected for nitrogen oxides and, since sulphur dioxide and total suspended particulate matter are not emitted in significant quantities from automobiles, no violation of air standards for these pollutants is to be expected as result of the project. In summary, testimony adduced at the final hearing demonstrated that studies submitted to DER in support of the permit application were prepared in accordance with valid, professionally and scientifically accepted methodologies. These studies adequately establish, not only that the project will not result in violations of state air quality standards, but that positive social, economic and environmental effects will accrue from construction of the proposed facility. Petitioners, JTA and DOT have submitted proposed findings of fact. Petitioner's Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's and DOT's Proposed Findings of Fact have also been substantially adopted in this order. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
Findings Of Fact The Petitioner, Carter Signs is in the business of outdoor advertising which includes the installation, repair and maintenance of signs, billboards, or displays on real property. Pursuant to a twenty-year term lease that began on March 1, 1988, the Petitioner has leased the real property described as: Strap No. 344525-00- 00002.000 lying east of 1-75, in Lee County, Florida. The lease describes the specific intended use of the real property under the lease. The lessee has agreed to use and occupy the premises solely for the purpose of outdoor advertising. The real property is located in Lee County, Florida, within 660 feet of Interstate Highway 75, a highway in the interstate highway system. The property is approximately 1.5 miles south of the Daniel Road interchange on the east side of the highway. The Lee County Comprehensive Plan, which has been enacted by the county, designates the area in which real property is located as "Airport Commerce." Under the plan, this land is approved for "mixed use developments consisting of light manufacturing or assembly, warehousing and distribution facilities; offices; ground transportation and airport related interconnection activity; and hotels/motels, meeting facilities and other hospitality services." The Petitioner's application to Lee County for a permit to erect the proposed sign on the property was approved. The county permit shows that the property is zoned "agricultural." If the "agricultural" zoning classification is violated, the county permit becomes void. The application for permit to the Department was denied because Section 479.111(2), Florida Statutes, allows signs within a controlled portion of an interstate highway only if the sign is within a commercial-zoned area, an industrial-zoned area, a commercial-unzoned area or industrial-unzoned area. In this case, the proposed sign was to be placed in an agriculturally zoned area.
The Issue The issue for determination is whether Petitioner's claim is barred by Section 760.11(7), Florida Statutes (1999), because Petitioner filed a request for hearing more than 35 days after the time prescribed in Section 760.11(3) for a determination of reasonable cause by the Florida Commission on Human Relations (the "Commission"). (All statutory references are to Florida Statutes (1999) unless otherwise stated).
Findings Of Fact Respondent employed Petitioner from May 25, 1995, until September 1, 1995. Petitioner filed a Charge of Discrimination with the Commission on October 3, 1995. The Charge of Discrimination alleges that Petitioner was forced to leave his position of employment because of Petitioner's sex, color, national origin, and age. The Charge of Discrimination contains no more specific factual allegation of an adverse employment action or other act of discrimination. Time Limits The Charge of Discrimination was timely filed pursuant to Section 760.11(1). The filing date of October 3, 1995, fell within 365 days of May 25, 1995, which is the first day on which the alleged discrimination could have occurred. Section 760.11(3) authorizes the Commission to issue a determination of reasonable cause within 180 days of October 3, 1995, the date Petitioner filed the Charge of Discrimination. Counting October 4, 1995, as the first day of the 180-day time limit, Section 760.11(3) authorized the Commission to determine reasonable cause no later than March 31, 1996. The Commission issued a Notice of Determination: No Cause on July 14, 1999. Section 760.11(7) required Petitioner to file a request for hearing within 35 days of March 31, 1996. Counting April 1, 1996, as the first day of the 35-day period, Section 760.11(7) required Petitioner to file a request for hearing no later than May 5, 1996. Petitioner did not timely file a request for hearing. Petitioner first requested a hearing in the Petition for Relief filed on August 13, 1999. Petitioner filed his request for hearing approximately 1,185 days late and 1,220 days after the expiration of the 180-day time limit prescribed in Section 760.11(3). Petitioner delayed the request for hearing because he did not have the form entitled Petition for Relief. Section 760.11(7) statutorily bars Petitioner's claim. Section 760.11(7) expressly provides, in relevant part: If the aggrieved person does not request an administrative hearing within the 35 days, the claim will be barred.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing this proceeding as barred by Section 760.11(7). DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Luis F. Hernandez 1116 Golden Gate Avenue Orlando, Florida 32808 Charles Williams, Jr., Esquire Scott A. Livingston, Esquire Williams and Davis, P.A. Suite 1220, Suntrust Center Post Office Box 1831 200 South Orange Avenue Olando, Florida 32802-1831
Findings Of Fact On December 9, 1986, Respondent owned a sign that had recently been erected along the west side of U.S. 19 in Pasco County, Florida, 37 feet from the nearest edge of the pavement. The DOT right-of-way at this location extends 88 feet west of the western edge of the pavement of U.S. 19. Upon seeing the DOT sign inspector in the vicinity of the sign, an employee of Respondent came to the scene, saw the violation notice posted and offered to relocate the sign off of the right-of-way. The sign in issue was relocated off of the DOT right-of-way within ten days of the notice of the violation. U.S. 19 at this location is a part of the State Highway System.
