10-010767 Retreat House, Llc vs. Pamela C. Damico And Department Of Environmental Protection
 Status: Closed
Recommended Order on Friday, October 14, 2011.


View Dockets  
Summary: Proposed 770-foot single-family dock was not clearly in the public interest.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8RETREAT HOUSE, LLC, )

12)

13Petitioner, )

15)

16vs. ) Case No. 10 - 10767

23)

24PAMELA C. DAMICO AND DEPARTMENT )

30OF ENVIRONMENTAL PROTECTION, )

34)

35Respondents. )

37)

38RECOMMENDED ORDER

40On July 6 - 8 , 2011 , an administrative hearing was held in

52this case in Islamorada before J. Lawrence Johnston,

60Administrative Law Judge, Division of Administrative Hearings

67(DOAH) .

69APPEARANCES

70For Petitioner: Patricia M. Silver, Esquire

76Michael J. Healy, Esquire

80Silver Law Group

83Post Office Box 710

87Islamorada, Florida 33036 - 0710

92For Respondent Department of Environmental Protecti on:

99Ronald Woodrow Hoenstine, III, Esquire

104Department of Environmental Protection

1083900 Commonwealth Boulevard

111Mail Station 35

114Tallahassee, Flor ida 32399 - 3000

120For Respondent Pamela C. Damico :

126Brittany Elizabeth Nugent, Esquire

130Dirk M. Smits, Esquire

134Vernis and Bowling of the Florida Keys,

141P.A. at Islamorada Professional Center

14681990 Overseas Highway, Third Floor

151Islamorada, Florida 33036 - 3614

156STATEMENT OF THE ISSUE

160The issue in this case is whether the Department of

170Environm ental Protection (DEP) should issue a letter of consent

180to use State - owned submerged lands (SL) and an e nvi r onmental

194resource p ermit (ERP) ( which are processed together as a SLERP )

207for the single - family do ck proposed by Pamela C. Damico, which

220would extend 770 feet into the Atlantic Ocean from her property

231on Plantation Key in Monroe County (DEP Permit 44 - 0298211 - 001) .

245PRELIMINARY STATEMENT

247On September 7, 2010, DEP gave notice of intent to issue

258Permit 44 - 0298211 - 001. On October 29, 2010, Petition er filed an

272Amended Petition for Administrative Hearing, which was referred

280to DOAH. The case was scheduled for a final hearing and

291continued several times, the last time until July 6 - 8, 2011.

303On June 28, 2011, the parties filed a Revised Prehearing

313Sti pulation. At the final hearing, counsel for Mrs. Damico

323called: Sean Kirwan, P.E., a civil engineer and permitting

332agent; David Barrow, a bathymetric surveyor; Harry DeLashmutt, a

341biologist; and Casey Dooley. She a lso had her Exhibits 1 - 1 0

355admitted in e vi dence. DEP called: Celia Hitchi ns, a DEP

367environmental specialist, who also is licensed as a captain by

377the United States Coast Guard (USCG) ; and Timothy Rach, a DEP

388Environmental Administrator for SL ERPs. DEP had its Exhibits 3,

3985, 11, 12, 13, 15, 17, 18, 22, 25, 30, 31, 35, 37, 38, 49, 59,

414and 83 admitted in evidence. Petitioner called: Bruce Franck,

423a DEP Environmental Manager ; Dr. William Carter, PetitionerÓs

431owner and operator; Mark Johnson, a surveyor and mapper; and

441Dr. Paul Lin, P.E., a coa stal engineer. PetitionerÓs Exhibits

4511 - 26 and 28 were received in evidence. The objections to the

464admission of PetitionerÓs Exhibits 27 and 29 are sustained.

473After presentation of evidence, a Transcript of the

481testimony and proposed recommended orders were filed. Counsel

489for Mrs. Damico also filed Final Argument. The post - hearing

500submissions have been considered.

504FINDINGS OF FACT

5071. Pamela C. Damico owns property at 89505 Old Highway on

518Plantation Key in the Upper Florida Keys in Monroe County. Her

529pr operty includes submerged land extending between 212 and 233

539feet into the Atlantic Ocean , which is an Outstanding Florida

549Water (OFW) . She applied to DEP for a permit to build a dock

563and boat mooring at her property. In its final c onfiguration,

574the proposed docking structure would have an access pier from

584the shoreline that would extend across her submerged land, and

594then farther across State - owned submerged lands, for a total

605distance of 770 feet from the shoreline.

6122. A primary goa l of the application was to site the

624mooring area in water with a depth of at least - 4 feet mean low

639water (MLW). Mrs. DamicoÓs consultants believed that this was

648required for a SLERP in Monroe County. In addition, they were

659aware that - 4 feet MLW would be required to get a dock permit

673from Islamorada, Village of Islands .

6793. The beliefs of Mrs. DamicoÓs consultants regarding the

688depth requirement for the mooring site were based in part on

699incorrect interpretations of DEP rules by certain DEP staff made

709bot h during Mrs. DamicoÓs application process and during the

719processing of other applications in the past. Those incorrect

728interpretations were based in part on ambiguous and incorrect

737statements in guidance documents published by DEP over the

746years. (Simil arly, certain DEP staff made incorrect

754interpretations of DEP rules regarding a supposedly absolute

762500 - foot length limit for any dock in Monroe County.) See

774Conclusions of Law for the correct interpretations of DEP rules.

7844. Petitioner owns oceanfront pro perty to the south and

794adjacent to Mrs. DamicoÓs . As expressed by PetitionerÓs owner

804and operator, Dr. William Carter, Petitioner has concerns

812regarding impacts of the proposed docking structure on

820navigation, boating safety, and natural resources, including

827seagrass es, stony corals, tarpon, and bonefish.

8345. Several changes were made to the proposed docking

843structure to address concerns raised by Petitioner. In the

852earlier proposals, the access pier would have been supported by

86210 - inch square concrete piles, which must be installed using a

874construction barge and heavy equipment . In its final form, to

885reduce the direct impacts to the seagrass es and stony corals, it

897was proposed that the first 550 feet of the access pier from the

910point of origin on the shoreline would be installed using pin

921piles, which are made of aluminum and are 4.5 inches square

932inside a vinyl sleeve five inches square , and can be installed

943by hand . Instead of the planks originally proposed for the

954decking of the access pier, a grating material was substituted,

964which would allow greater light penetration to the seagrass es

974below. The orientation and length of the proposed docking

983structure was modifie d several times in an effort to achieve the

995optimal siting of the mooring platform. Handrails were proposed

1004for the access pier , and no tie - up cleats are provided there.

1017I n combination with the elevation of the decking at five feet

1029above mean high water (MHW), the handrails would discourage use

1039of the pier for mooring by making it impractical if not

1050impossible in most cases . Railing also was proposed for the

1061north side of the mooring platform to discourage mooring there,

1071and a sign was proposed to be pla ced on the north side of the

1086platform saying that mooring there is prohibited. These

1094measures were proposed to restrict mooring to the south side of

1105the mooring platform, where a boat lift would be installed ,

1115which would protect the large seagrass beds th at are on the

1127north side of the terminal platform . (Mooring a n additional

1138boat along the end of the 8 - foot long mooring platform, which

1151faces the prevailing oceanic waves, is impractical if not

1160impossible.) To make the docking structure less of a navigation

1170and boating safety hazard, it was proposed that a USCG flashing

1181white light would be installed at the end of the terminal

1192platform.

11936. In its final configuration, the docking structure would

1202preempt approxi mately 2,240 square feet of State - owned submerged

1214land , plus approximately 200 square feet preempted by the

1223proposed boat lift . In addition, it would preempt approximately

1233900 square feet of Mrs. DamicoÓs privately - owned submerged land.

1244Mrs. DamicoÓs pri vate property has approximately 352 linear feet

1254of shoreline.

12567. Dr. Lin testified for Petitioner that the proposed

1265docking structure would preempt a total of 3,760 square feet.

1276This calculation included 520 square feet of preemption by the

1286boat lift , but the proposed boat lift is for a smaller boat that

1299would preempt only approximately 200 square feet .

13078. Intending to demonstrate that the proposed docking

1315structure would wharf out to a consistent depth of - 4 feet MLW ,

1328Mrs. DamicoÓs consultants submitted a bathymetric survey

1335indicating a - 4 MLW contour at the mooring platform. In fact,

1347the line indicated on the survey is not a valid contour line,

1359and the elevations in the vicinity do not provide reasonable

1369assurance that the mooring area of the docking stru cture in its

1381final configuration is in water with a consistent depth of - 4

1393feet MLW, or that there is water of that depth consistently

1404between the mooring area and the nearest navigable channel. The

1414evidence does, however, provide reasonable assurance tha t the

1423proposed mooring platform is in water with a consistent depth of

1434at least - 3 feet MLW, and that there is water of that depth

1448consistently between the mooring area and the nearest navigable

1457channel , which would avoid damage to seagrass bed and other

1467b iological communities .

14719. The evidence was not clear whether there is another

1481possible configuration available to Petitioner to wharf out to a

1491mooring area with a consistent depth of at least - 3 feet MLW,

1504not over seagrasses, and with water of that depth co nsistently

1515between the mooring area and the nearest navigable channel, that

1525would not require as long an access pier, or preempt as many

1537square feet of State - owned submerged land.

154510. A noticed general permit (NGP) can be used for a dock

1557of 2,000 square fee t or less , in water with a minimum depth of

1572- 2 feet MLW, and meeting certain other requirements. See Fla.

1583Admin. Code R. 62 - 341.215 and 62 - 341.427. The evidence was not

1597clear whether an NGP can be used in an OFW in Monroe County in

1611water less than - 3 feet FLW , according to DEPÓs interpretation

1622of its rules . Cf. Fla. Admin. Code Ch. 62 - 312.400, Part IV.

163611. Initially, mitigation for impacts to natural resources

1644was proposed. However, DEPÓs staff determined that no

1652mitigation was required because there would not be an y adverse

1663effects from the docking structure , as finally proposed . For

1673the same reason, DEP staff determined that there would be no

1684significant cumulative adverse impacts and that no further

1692analysis of cumulative impacts was necessary.

169812. Actually, t here will be adverse impacts to natural

1708resources . The biologist for Mrs. Damico determined that there

1718are some seagrasses and numerous stony corals in the footprint

1728of the access pier, in addition to other resources less

1738susceptible to impacts (such as macro - algae and loggerhead

1748sponges) . These organisms will be disturbed or destroyed by the

1759installation of the access pier . The biologist quantified the

1769impacts to round starlet corals by assuming the placement of two

1780supporting piles , four fee t apart, every ten feet for the length

1792of the pier , and assuming impacts to the stony corals in a

1804quadrat centered on each pile location and three times the

1814diameter of the pile. Using this method, it was estimated that

1825approximately 1,505 square centimeters of the stony corals would

1835be destroyed by the installation of the docking structure.

184413. The impacts assessed by Mrs. DamicoÓs biologist and

1853DEP assume that construction would Ðstep outÑ from shore and, as

1864construction proceeds, from already - built segments of the pier,

1874until water depths allow for the use of a construction barge

1885without unintended damage to the natural resources in the area.

1895This construction method is not required by the proposed SLERP.

1905It would have to be added as a permit condition.

191514. Petitioner did not prove that t he impacts to a few

1927seagrasses and approximately 1,505 square centimeters of the

1936stony corals would damage the viability of those biological

1945communities in the vicinity of the proposed d ocking structure.

195515. Direct and indirect impacts to other species from the

1965installation and maintenance of the docking structure would not

1974be expected. Impacts to listed species, including manatees and

1983sawfish, would not be anticipated. Manatees sometime s are seen

1993in the vicinity but do not rely on the area for foraging or

2006breeding. Sawfish are more likely to frequent the bay waters

2016than the ocean. Migratory t arpon and bonefish use the area and

2028might swim out around the docking structure to avoid passin g

2039under it. Resident tarpon and some other fish species might

2049congregate under the docking structure.

205416. The proposed docking structure does not block or cross

2064any marked navigation channel and is in a shallow area near the

2076shore where boats are supposed to be operated at reduced speeds.

2087Nonetheless, the proposed structure poses more than a casual

2096navigation hazard, especially due to its length , which is

2105significantly greater than any docking structure in the

2113vicinity .

211517. In conducting its staff analysis of the impacts on

2125navigation and boating safety, DEP understood that the closest

2134marked navigation channel is at least two miles away from the

2145proposed docking structure . Actually, t here also is a marked

2156channel at the Tavernier Creek, which is l ess than half a mile

2169north of the site. It is not uncommon for b oaters to leave the

2183marked Tavernier Creek channel to motor south in the shallow

2193water closer to shore ; they also sometimes cut across the

2203shallow waters near the site to enter the Tavernier Creek

2213channel when heading north . There also are other unmarked or

2224unofficially - marked channels even closer to the proposed docking

2234structure. In good weather and sea conditions, the proposed

2243docking structure would be obvious and easy to avoid . In worse

2255conditions , especially at night , it could be a serious hazard.

226518. To reduce the navigational hazard posed by the dock ,

2275reflective navigation indicators are proposed to be placed every

228430 feet along both sides of the access pier, and the USCG

2296flashing white light is proposed for the end of terminal

2306platform. These measures would help make the proposed docking

2315structure safer but would not eliminate the risk s entirely . T he

2328light helps when it functions properly, it can increase the risk

2339if boaters come to rely on it , and it goes out. Both the light

2353and reflective indicators are less effective in fog and bad

2363weather and seas. The risk increases with boats operated by

2373unskilled and especially intoxicated boaters.

237819. It is common for numerous boaters to congregate on

2388weekends and holidays at Holiday Isle, which is south of the

2399proposed docking structure . A lcoholic beverages are consumed

2408there . Some of these boaters operate their boats in the

2419v icinity of the proposed docking structure, including Ðcutting

2428the cornerÑ to the Tavernier Creek pass channel, instead of

2438running in deeper water to enter the pass at the ocean end of

2451the navigation channel. This increases the risk of collision,

2460especiall y at night or in bad weather and sea conditions.

247120. DEP sought comments from various state and federal

2480agencies with jurisdiction over fisheries and wildlife. None of

2489these agencies expressed any objection to the proposed docking

2498structure . No representative from any of those agencies

2507testified or presented evidence at the hearing.

251421. Area fishing guides and sports fishermen fish for

2523bonefish and tarpon in the flats in the vicinity of the proposed

2535docking structure. If built, the proposed docking structure

2543would spoil this kind of fishing , especially bonefishing, or at

2553least make it more difficult. The more similar docking

2562structures installed in the area, the greater the difficulties

2571in continuing to use the area for this kind of fishing . On the

2585other hand, resident tarpon and some other fish species could be

2596attracted by such docking structures.

260122. Mrs. DamicoÓs application initially offered a money

2609donation to the Florida Keys Environmental Restoration Trust

2617Fund if mitigation was requ ired. The proposed permit includes a

2628requirement to donate $5,000 to the Florida Keys National Marine

2639Sanctuary (FKNMS) , before construction begins, fo r the

2647maintenance of mooring buoys to reduce recreational boater

2655impacts at the coral reef areas . The r eefs are miles from the

2669site of the proposed docking structure, and the donation does

2679not offset project impacts. Rather, as stated in the proposed

2689permit, its purpose is to Ðsatisfy public interest

2697requirements.Ñ

269823. As a federal agency, the FKNMS does n ot accept

2709donations directly . Donations would have to be made to the

2720Sanctuary Fri ends of the Florida Keys (SFFK) for use by the

2732FKNMS for buoy maintenance. A condition would have to be added

2743to the ERP to ensure that the donation would be used for the

2756intended purpose.

275824. In a bid to defeat Mrs. DamicoÓs attempt to satisfy

2769p ublic interest requirements, Petitioner offered to donate

2777$10,000 to SFFK for the buoy maintenance if DEP denied the

2789permit. PetitionerÓs offer should not affect the evaluation of

2798the proposed docking structure under the public interest

2806criteria.

280725. DEP staff evaluated the proposed ERP under the public

2817interest criteria to be essentially n eutral and determined that

2827the $5,000 donation would make it clearly in the public

2838interest. This analysis was flawed.

284326. With or without the $5,000 donation, t he proposed

2854docking structure would hav e an adverse effect on the pu blic

2866health, safety, and we lfare; an adverse effect on navigation; an

2877adverse effect on fishing or recreational values in the

2886vicinity ; and an adverse effect on the current condition and

2896relative value of functions being performed by areas affected by

2906the proposed activity. It woul d not have any positive public

2917interest effects. Its effects would be permanent.

2924CONCLUSIONS OF LAW

292727. The proposed docking structure requires both

2934regulatory and proprietary authorization. Regulatory

2939authorization is governed by chapters 403 and 373, Florida

2948Statutes, and chapter 62 - 312, Florida Administrative Code.

2957Proprietary authorization (the authorization to preempt and use

2965State - owned submerged land) is governed by chapter 253, Florida

2976Statutes, and chapter 18 - 21, Florida Administrative Code.

298528. Under newly - enacted section 120.569(1)(p), Florida

2993Statutes, Mrs. Damico has the burden to present a prima facie

3004case demonstrating entitlement to the regulatory authorization,

3011and Petitioner Ðhas the burden of ultimate persuasion and has

3021the burden of go ing forward to prove the case in opposition

3033. . . .Ñ Mrs. Damico has the burden to prove entitlement to the

3047proprietary authorization. See J.W.C. Co., Inc., v. DepÓt of

3056Transp. , 396 So. 2d 778 (Fla. 1st DCA 1981).

3065Letter of Consent

306829. Rule 18 - 21.0041 applies to multi - slip docking

3079structures in Monroe County. It does not apply to Mrs. DamicoÓs

3090proposed docking structure. If it did, it would require a

3100minimum water depth of - 4 feet MLW in the boat mooring, turning

3113basin, access channel s , and other such areas to accommodate the

3124proposed boat use. See Fla. Admin. Code R. 18 - 21.0041(1)(b)3.a.

3135It also would be necessary for DEP to determine that the

3146proposed dock would not be contrary to the public interest. See

3157Fla. Admin. Code R. 18 - 21 .0041(1)(b)4.a.

316530. The form of authorization proposed to be issued for

3175Mrs. DamicoÓs docking structure is a letter of consent under

3185r ule 18 - 21.005(c). The rule describes several activities that

3196can be authorized by a letter of consent .

320531. Under subsection 1., a letter of consent can be issued

3216for a minimum - sized private residential single - family dock or

3228pier per parcel. Mrs. DamicoÓs proposed docking structure is

3237not minimum - sized. A smaller dock could have been designed that

3249would terminate in water wit h a depth of - 3 feet MLW.

326232. Under subsection 2., a letter of consent can be issued

3273for Ð[p]rivate residential single - family or multi - family docks,

3284piers, boat ramps, and similar existing and proposed activities

3293that cumulatively preempt no more than 10 sq uare feet of

3304sovereignty submerged land for each linear foot of the

3313applicantÓs riparian shoreline, along sovereignty submerged land

3320on the affected waterbody within a single plan of development

3330. . . .Ñ

333433. Petitioner contends that subsection 2. does not a pply

3344to Mrs. DamicoÓs docking structure because she does not have

3354Ðriparian shoreline, along sovereignty submerged land on the

3362affected waterbody.Ñ DEPÓs contrary interpretation of

3368subsection 2. is more reasonable. Mrs. Damico has riparian

3377shoreline alon g the affected waterbody (as opposed to some other

3388waterbody). Her privately - owned submerged land does not

3397preclude her from making use of subsection 2.

340534. Petitioner also contends that, if Mrs. Damico has

3414riparian shoreline so as to make subsection 2. ap plicable, a

3425letter of consent can be used only if no more than 10 square

3438feet of submerged land, whether private or State - owned, is

3449preempted for each linear foot of the applicantÓs riparian

3458shoreline. DEPÓs contrary interpretation of subsection 2. is

3466mor e reasonable. The ruleÓs focus is preemption of State - owned

3478submerged land. (Even if Petitioner were correct, no more than

348810 square feet of submerged land, whether private or State -

3499owned, is preempted for each linear foot of Mrs. Damico Ós

3510riparian shore line.)

351335. Under rule 18 - 21.004(1)(a), all activities on State -

3524owned submerged lands Ðmust be not contrary to the public

3534interest . . . .Ñ Except for sales, the rule does not require

3547an applicant to establish that all proposed activities are

3556clearly in the public interest. It was proven that the proposed

3567docking structure is not contrary to the public interest.

357636. A letter of consent for the proposed docking structure

3586is appropriate.

3588Regulatory Authorization

359037. Entitlement to a regulatory authorization is based on

3599statutory and rule criteria. See Council of the Lower Keys v.

3610Charley Toppino & Sons, Inc. , 429 So. 2d 67 (Fla. 3d DCA 1983).

3623Petitioner must prove that reasonable assurance of compliance

3631with those criteria has not been provided. See § 120.569(1)(p),

3641Fla. Stat. Reasonable assurance does not mean an absolute

3650guarantee and does not require the elimination of speculation as

3660to what might occur if a project is developed as proposed.

3671Rather, it means a Ðsubstantial likelihood that the project will

3681be successfully implemented.Ñ M etro. Dade Cnty . v. Coscan Fl a . ,

3694Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

370438. Section 373.414(1) applies to the proposed ERP. It

3713requires reasonable assurance that applicab le state water

3721quality standards will be met. It also requires, in the case of

3733OFWs, Ðreasonable assurance that the proposed activity will be

3742clearly in the public interest.Ñ This is determined by

3751considering and balancing the following criteria:

37571. W hether the activity will adversely

3764affect the public health, safety, or welfare

3771or the property of others;

37762. Whether the activity will adversely

3782affect the conservation of fish and

3788wildlife, including endangered or threatened

3793species, or their habitats;

37973. Whether the activity will adversely

3803affect navigation or the flow of water or

3811cause harmful erosion or shoaling;

38164. Whether the activity will adversely

3822affect the fishing or recreational values or

3829marine productivity in the vicinity of the

3836activity;

38375. Whether the activity will be of a

3845temporary or permanent nature;

38496. Whether the activity will adversely

3855affect or will enhance significant

3860historical and archaeological resources

3864under the provisions of s. 267.061; and

38717. The current con dition and relative value

3879of functions being performed by areas

3885affected by the proposed activity.

3890§ 373.414(1)(a), Fla. Stat.

389439. In 1800 Atlantic Developers v. Dep artment of

3903Environmental Regulation , 552 So. 2d 946 (Fla. 3d DCA 1989),

3913DEPÓs predecessor agency (DER) denied an application for a

3922dredge and fill project to renourish a private beach. There was

3933reasonable assurance that there would be no state water quality

3943violations . U nder the public i nterest criteria , t he court held

3956that the applicant was Ðnot obligated to show a need or

3967necessity for the dredging and filling in the sense of

3977benefiting the public or the environment.Ñ Id. at 957. In

3987other words, the applicant Ðneed not show any partic ular need or

3999net public benefit as a condition of obtaining the permit.Ñ Id.

4010Rather, the applicant was Ðonly required to show that the

4020dredging and filling required by the project would be carried

4030out in a manner that would not materially degrade water q uality

4042and in a manner that was clearly in the public interest.Ñ Id.

4054I t was error for DER to make Ð1800 Atlantic prove the absence of

4068negative impacts from the project and demonstrate the creation

4077of a net environmental or societal benefit to meet the pu blic

4089interest test. Suggestions in the final order that this showing

4099is necessary simply because the project is in Outstanding

4108Florida Water go beyond the statutory provisions and have no

4118basis in the law.Ñ Id.

412340. Regarding DOAHÓs role, t he decision in 1800 Atlantic

4133Developers stated : ÐAs the hearing officer's function was only

4143that of a fact finder, it was the hearing officerÓs function to

4155make findings of fact regarding disputed factual issues

4163underlying the conditions set by DER and the implementatio n of

4174and compliance with the mitigative conditions set by DER. The

4184hearing officer was not vested with power to review DER's

4194discretion in setting acceptable mitigative conditions in the

4202sense of passing on their sufficiency to meet the statutory

4212criteria .Ñ Id. a t 955.

421841. In the course of the application process, Mrs. Damico

4228through her consultants made changes to reduce the adverse

4237effects of her proposal , but the final version still has adverse

4248impacts on public interest criteria. T he proposed ERP is not

4259positive or even neutral under the statutory public interest

4268criteria. It is negative under the first criterion

4276(specifically, adverse effect on the public health, safety, or

4285welfare). It is negative on the third criterion (specifi cally,

4295adverse effect on navigation). It is negative under the fourth

4305criterion (specifically, adverse effect on fishing or

4312recreational values in the vicinity). It is slightly negative

4321on the seventh criterion (current condition and relative value

4330of fu nctions being performed by areas affected by the proposed

4341activity). It is permanent under the fifth criterion. It is

4351neutral on the other criteria.

435642. The changes made to the initial proposal to reduce

4366adverse effects does not qualify as mitigation unde r section

4376373.414(1)(b), which is defined as a measure Ðto mitigate

4385adverse effects that may be caused by the regulated activity.Ñ

4395Cf. Fla. Admin. Code R. 62 - 312.450 (DEP Ðshall consider

4406mitigation pursuant to Section 373.414(1)(b), F.S., . . . .Ñ).

4416Like wise, the $5,000 donation to maintain buoys at a coral reef

4429miles away does not qualify as mitigation for the adverse

4439effects. Neither the changes to the initial proposal nor the

4449$5,000 donation makes the proposed ERP clearly in the public

4460interest.

446143. DE P has adopted by reference rule 40E - 4.302 (1995) and

4474the 1995 version of the South Florida Water Management District

4484(SFWMD) Basis of Review (BOR) for use in evaluating applications

4494like Mrs. Dam icoÓs. Those criteria prohibit unacceptable

4502cumulative impac ts, which BOR section 4.2.8.1 defines as

4511cumulative impacts that would result in significant adverse

4519impacts to functions of wetlands or other surface waters. BOR

4529section 4.2.8.2 allows mitigation for unacceptable cumulative

4536impacts as provided for in BOR sections 4.3 through 4.3.8.

454644. In this case, DEP did not perform a cumulative impacts

4557analysis because it was assumed that the proposed ERP would have

4568no adverse impacts. Not believing that any cumulative impacts

4577analysis was required, DEP did not evaluat e the possibility that

4588unacceptable cumulative impacts could be mitigated.

459445. Chapter 62 - 312.400, Part IV, adds criteria for

4604dredging and filling in OFWs in Monroe County because the

4614Environmental Regulation Commission has found these waters to be

4623Ðan irre placeable asset which require special protection.Ñ Fla.

4632Admin. Code R. 62 - 312.400(2)(a). ÐFurther, the Florida

4641Legislature in adopting Section 380.0552, F.S., recognized the

4649value of the Florida Keys to the State as a whole by designating

4662the Keys an Are a of Critical State Concern. This rule

4673implements Section 403.061(34), F.S., and is intended to provide

4682the most stringent protection for the applicable waters

4690allowable by law.Ñ Fla. Admin. Code R. 62 - 312.400(2)(b) .

4701ÐPursuant to Section 380.0552(7), Fl orida Statutes (1986 Supp.),

4710the specific criteria set forth in this section are intended to

4721be consistent with the Principles for Guiding Development as set

4731forth in Chapter 28 - 29, Florida Administrative Code (August 23,

47421984), and with the principles set forth in that statute.Ñ Fla.

4753Admin. Code R. 62 - 312.400(3) . Contrary to PetitionerÓs

4763argument, the rule does not make section 380.0552 and chapter

477328 - 29 ERP criteria in addition to chapter 62 - 312.400, Part IV.

478746. Under rule 62 - 312.410(1), the proposed do cking

4797structure may not be issued an ERP if, alone or in combination

4809with other activities, it damages the viability of a living

4819stony coral community, soft coral community, macro marine algae

4828community, sponge bed community, or marine seagrass bed

4836communi ty. While some individual organisms will be impacted and

4846destroyed by the installation of the proposed docking structure,

4855Petitioner did not prove that the viability of existing

4864communities of those organisms will be damaged.

487147. Under rule 62 - 312.420(2)(b), water depths at the

4881mooring site of the proposed docking structure must be at least

4892- 3 feet MLW. The proposed docking structure meets this

4902requirement.

490348. Rule 62 - 312.420(2)(c) requires an affirmative

4911demonstration that adequ ate depths exist for ingress and egress

4921of boats to the mooring site, and in no case less than necessary

4934to avoid damage to a seagrass bed community or other biological

4945communities listed in rule 62 - 312.410(1)(a). At least - 3 feet

4957MLW exists for ingress a nd egress to the mooring site of the

4970proposed docking structure. Reading subsections (b) and (c) in

4979pari materia , this is adequate and enough to avoid damage to

4990existing communities of seagrass beds and the other listed

4999communities of organisms.

500249. For va rious reasons, including rule 62 - 312.420(2)(a),

5012Petitioner contends that - 4 feet MLW at the mooring site and for

5025ingress and egress is required. Rule 62 - 312.420(2)(a) requires

5035- 4 feet MLW but only for piers designed to moor three or more

5049boats. It does n ot apply to Mrs. DamicoÓs proposed docking

5060structure. Islamorada, Village of Islands, requires - 4 feet MLW

5070and has a 100 - foot length limit for dock permits , but its

5083permitting requirements are not DEP ERP criteria.

509050. Rule 62 - 312.420(2)(d) requires that proposed

5098construction techniques protect the viability of a seagrass bed

5107community and the other communities of organisms listed in rule

511762 - 312.410(1)(a). The proposed construction techniques would

5125protect the viabilit y of those communities, assuming a condition

5135is added to require construction to Ðreach outÑ from shore and ,

5146as construction proceeds, from already - built segments of the

5156pier , until water depths allow for the use of a construction

5167barge without unintended damage to the natural resources in the

5177area.

517851. Rule 62 - 312.420(2)(e) prohibits the location of

5187mooring sites over a seagrass bed community at depths less than

5198- 5 feet MLW or over a coral reef. The proposed mooring site is

5212not prohibited by this rule.

521752. Rule 62 - 312.420(2)(f) requires that Ð[a]ll portions of

5227the pier facility other than the specific mooring sites shall be

5238designed in a manner which will prevent the mooring of

5248watercraft other than at the specific mooring sites.Ñ The

5257proposed docking struc ture is designed in accordance with this

5267rule.

5268RECOMMENDATION

5269Based upon the foregoing Findings of Fact and Conclusions

5278of Law, it is

5282RECOMMENDED that DEP enter a final order denying a permit

5292for the proposed docking structure ; if granted, there shoul d be

5303a condition requiring construction to Ðreach outÑ from shore

5312and, as construction proceeds, from already - built segments of

5322the pier, until water depths allow for the use of a construction

5334barge without unintended damage to the natural resources in the

5344area.

5345DONE AND ENTERED this 14th day of October, 2011, in

5355Tallahassee, Leon County, Florida.

5359S

5360J. LAWRENCE JOHNSTON

5363Administrative Law Judge

5366Division of Administrative Hearings

5370The DeSoto Building

53731230 Apalachee Parkway

5376Tallahassee, Florida 32399 - 3060

5381(850) 488 - 9675

5385Fax Filing (850) 921 - 6847

5391www.doah.state.fl.us

5392Filed with the Clerk of the

5398Division of Administrative Hearings

5402this 14th day of October, 2011.

5408COPIES FURNISHED :

5411Patricia M. Silver, Esquire

5415Silver Law Group

5418Post Office Box 710

5422Islamorada, Florida 33036 - 0710

5427Brittany Elizabeth Nugent, Esquire

5431Vernis and Bowling of the Florida Keys, P.A.

5439at Islamorada Professional Center

544381990 Overseas Highway, Third Floor

5448Islamorada, Florida 33036 - 3614

5453Ronald Woodrow Hoenstine, III, Esquire

5458Department of Environmental Protection

54623900 Commonwealth Boulevard, Mail Station 35

5468Tallahassee, Florida 32399 - 3000

5473Herschel T. Vinyard, Jr., Secretary

5478Department of Environmental Protection

54823900 Commonwealth Boulevard, Mail Station 35

5488Tallahassee, Florida 32399 - 3000

5493Tom Beason, General Counsel

5497Department of Environmental Protection

55013900 Commonwealth Boulevard, Mail Station 35

5507Tallahassee, Florida 32399 - 3000

5512Lea Crandall, Agency Clerk

5516Department of Environmental Pro tection

55213900 Commonwealth Boulevard, Mail Station 35

5527Tallahassee, Florida 32399 - 3000

5532NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5538All parties have the right to submit written exceptions within 15

5549days from the date of this Recommended Order. Any exceptions to

5560this Recommended Order should be filed with the agency that will

5571issue the final order in this case.

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PDF
Date
Proceedings
PDF:
Date: 01/13/2012
Proceedings: Agency Final Order filed.
PDF:
Date: 01/12/2012
Proceedings: Agency Final Order
PDF:
Date: 10/31/2011
Proceedings: Respondent, Pamela C. Damico's, Exceptions to the Administrative Law Judge's Recommended Order filed.
PDF:
Date: 10/14/2011
Proceedings: Recommended Order
PDF:
Date: 10/14/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/14/2011
Proceedings: Recommended Order (hearing held July 6-8, 2011). CASE CLOSED.
PDF:
Date: 09/08/2011
Proceedings: Respondent Pamela C. Damico's Proposed Recommended Order filed.
PDF:
Date: 09/08/2011
Proceedings: Respondent Pamela C. Damico's Proposed Recommended Order filed.
PDF:
Date: 09/08/2011
Proceedings: Notice of Filing Petitioner's Proposed Recommended Order filed.
PDF:
Date: 09/07/2011
Proceedings: Respondent Damico's Final Argument filed.
PDF:
Date: 09/07/2011
Proceedings: Respondent Department of Environmental Protection's Proposed Recommended Order filed.
Date: 08/23/2011
Proceedings: Transcript (volume I-III) (not available for viewing) filed.
PDF:
Date: 08/17/2011
Proceedings: Notice of Filing (final hearing transcripts) filed.
PDF:
Date: 08/17/2011
Proceedings: Order Granting Extension of Time.
PDF:
Date: 08/17/2011
Proceedings: Joint Motion for Extension of Time to File Proposed Recommended Orders filed.
Date: 07/13/2011
Proceedings: Petitioner's Exhibits (exhibits not available for viewing)
Date: 07/13/2011
Proceedings: Department of Environmental Protection Hearing Notebook 's Exhibits (exhibits not available for viewing).
Date: 07/13/2011
Proceedings: Respondent's Exhibits (exhibits not available for viewing).
Date: 07/13/2011
Proceedings: Department of Environmental Protection Hearing Notebook (Rules) (rules not available for viewing).
PDF:
Date: 07/12/2011
Proceedings: Notice of Filing (return of service Tad Burke).
PDF:
Date: 07/12/2011
Proceedings: Notice of Filing.
Date: 07/06/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/06/2011
Proceedings: Notice of Filing (Original Return of Service of Trial Subpoean directed to Sean Kirwan).
PDF:
Date: 07/05/2011
Proceedings: Respondent Pamela C. Damico's Amended Exhibit List filed.
PDF:
Date: 06/30/2011
Proceedings: Reply to Response to Petitioner's Motion to Permit the Use of Tad Burke's Deposition at Final Hearing filed.
PDF:
Date: 06/30/2011
Proceedings: Department of Environmental Protection's Amended Exhibit List to the Joint Prehearing Stipulation filed.
PDF:
Date: 06/29/2011
Proceedings: Respondent's Supplement to Response to Petitioner's Motion to Permit the Use of Tad Burke's Deposition at Final Hearing filed.
PDF:
Date: 06/28/2011
Proceedings: Motion to Stike Designation of Tad Burke as an Expert Witness and Motion in Limine to Exclude Expert Testimony of Tad Burke filed.
PDF:
Date: 06/28/2011
Proceedings: Order on Objection to Notice of Production by Non-party and on Motion to Extend Discovery Deadline.
PDF:
Date: 06/28/2011
Proceedings: Response to Petitioner's Motion to Permit the Use of Tad Burke's Deposition at Final Hearing filed.
PDF:
Date: 06/28/2011
Proceedings: Notice of Filing Exhibit (exhibit not available for viewing) filed.
PDF:
Date: 06/28/2011
Proceedings: Revised Prehearing Stipulation filed.
PDF:
Date: 06/28/2011
Proceedings: Prehearing Stipulation filed.
PDF:
Date: 06/27/2011
Proceedings: Deposition of Michael Tad Burke filed.
PDF:
Date: 06/27/2011
Proceedings: Notice of Filing the Deposition of Tad Burke filed.
PDF:
Date: 06/27/2011
Proceedings: Petitioner's Motion to Permit the Use of Tad Burke's Deposition filed.
PDF:
Date: 06/27/2011
Proceedings: Petitioner Retreat House, LLC's Response to Pamela C. Damico's Third Request for Production filed.
PDF:
Date: 06/23/2011
Proceedings: Notice of Filing.
PDF:
Date: 06/23/2011
Proceedings: Second Supplement to Petitioner's Witness List filed.
PDF:
Date: 06/23/2011
Proceedings: Respondent Pamela C. Damico's Response and Reply to Petitioner's Reply and Response in Opposition to Respondent Damico's Notice of Production from Non-Party and Motion for Extension of Discovery Deadline filed.
PDF:
Date: 06/22/2011
Proceedings: Petitioner's Reply and Response in Opposition to Respondent Damico's Motion for Extension of Discovery Deadline filed.
PDF:
Date: 06/21/2011
Proceedings: Response to Petitioner's Objection to Damico's Notice of Production from Non-Party and Motion for Extension of Discovery Deadline filed.
PDF:
Date: 06/20/2011
Proceedings: Notice of Filing (Original Return of Service of Dr. Paul Lin).
PDF:
Date: 06/20/2011
Proceedings: Department's Response to Petitioner Retreat House, LLC's Third Request for Production of Documents filed.
PDF:
Date: 06/17/2011
Proceedings: Order Denying Emergency Motion for Protective Order.
Date: 06/17/2011
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 06/17/2011
Proceedings: Notice of Appearance of Co-Counsel for Department of Environmental Protection (filed by Brynna J. Ross).
PDF:
Date: 06/16/2011
Proceedings: Corrected Objection to Damico's Notice of Production from Non-party filed.
PDF:
Date: 06/16/2011
Proceedings: Response to Emergency Motion for Protective Order filed.
PDF:
Date: 06/16/2011
Proceedings: Objection to Damico's Notice of Production From Non-party filed.
PDF:
Date: 06/16/2011
Proceedings: Emergency Motion for Protective Order filed.
PDF:
Date: 06/16/2011
Proceedings: Second Supplement to Petitioner's Witness List filed.
PDF:
Date: 06/15/2011
Proceedings: Subpoena Duces Tecum without Deposition (Fred Jacobs, Ph.D.) filed.
PDF:
Date: 06/15/2011
Proceedings: Notice of Production from Non--Party filed.
PDF:
Date: 06/15/2011
Proceedings: Re-Notice of Taking Deposition of Thor Dunmire Duces Tecum filed.
PDF:
Date: 06/09/2011
Proceedings: Supplement to Petitioner's Witness List filed.
PDF:
Date: 06/08/2011
Proceedings: Notice of Taking Deposition of Philip A. Frank Duces Tecum filed.
PDF:
Date: 06/07/2011
Proceedings: Notice of Taking Deposition of Thor Dunmire Duces Tecum filed.
PDF:
Date: 06/07/2011
Proceedings: Notice of Taking Deposition of Dr. Paul Lin Duces Tecum filed.
PDF:
Date: 06/07/2011
Proceedings: Re-Notice of Taking Deposition of Tad Burke-Duces Tecum (time change only) filed.
PDF:
Date: 06/03/2011
Proceedings: Petitioner's Cross-Notice of Taking Video Deposition (Michael Collins) filed.
PDF:
Date: 06/03/2011
Proceedings: Notice of Taking Deposition of Tad Burke Duces Tecum filed.
PDF:
Date: 06/01/2011
Proceedings: Petitioner's Witness List filed.
PDF:
Date: 06/01/2011
Proceedings: Respondent Pamela C. Damico's Witness List filed.
PDF:
Date: 06/01/2011
Proceedings: Notice of Taking Deposition of Michael Collins Duces Tecum filed.
PDF:
Date: 06/01/2011
Proceedings: Department of Environmental Protection's Witness List filed.
PDF:
Date: 06/01/2011
Proceedings: Amended Notice of Hearing (hearing set for July 6 through 8, 2011; 9:00 a.m.; Tavernier, FL; amended as to hearing room location and venue).
PDF:
Date: 06/01/2011
Proceedings: Order on Motion to Compel and/or Exclude Testimony and Motion for Rule to Show Cause and for Sanctions.
PDF:
Date: 05/27/2011
Proceedings: Petitioner Retreat House, LLC's Response in Opposition to Respondent's Motion for Rule to Show Cause and for Sanctions filed.
PDF:
Date: 05/27/2011
Proceedings: Petitioner Retreat House, LLC's Response to Respondent Damico's Motion to Compel and/or Exclude Testimony of Witnesses filed.
PDF:
Date: 05/26/2011
Proceedings: Second Re-Notice of Taking Deposition of Dr. William A. Carter Duces Tecum (Williams Carter) filed.
PDF:
Date: 05/25/2011
Proceedings: Order on Emergency Motions for Protective Order.
PDF:
Date: 05/25/2011
Proceedings: Respondent Pamela C. Damico's Motion for Rule to Show Cause and for Sanctions filed.
PDF:
Date: 05/23/2011
Proceedings: Respondent Pamela Damico's Third Request for Production filed.
PDF:
Date: 05/23/2011
Proceedings: Motion to Compel and/or Exclude Testimony of Witnesses filed.
PDF:
Date: 05/23/2011
Proceedings: Petitioner's Notice of Filing Response to Pamela C. Damico's Third Set of Interrogatories filed.
PDF:
Date: 05/19/2011
Proceedings: Notice of Taking Deposition of Mark Johnson Duces Tecum filed.
PDF:
Date: 05/19/2011
Proceedings: Petitioner's Third Request for Production to State of Florida Department of Environmental Protection filed.
PDF:
Date: 05/19/2011
Proceedings: Notice of Cancellation of Taking Deposition of Paul Armstrong Duces Tecum filed.
PDF:
Date: 05/19/2011
Proceedings: Response to Petitioner's Emergency Motion for Protective Order of Dr. William Carter filed.
PDF:
Date: 05/18/2011
Proceedings: Petitioner's Emergency Motion for Protective Order filed.
PDF:
Date: 05/18/2011
Proceedings: Supplement to Petitioner's Emergency Motion for Protective Order filed.
PDF:
Date: 05/18/2011
Proceedings: Emergency Motion for Protective Order filed.
PDF:
Date: 05/18/2011
Proceedings: Notice of Taking Deposition of Paul Armstrong Duces Tecum filed.
PDF:
Date: 05/18/2011
Proceedings: Notice and Certificate of Service of Respondent DEP's Amended Response to Petitioner Retreat House, LLC First Set of Interrogatories filed.
PDF:
Date: 05/17/2011
Proceedings: Notice of Service of Supplemental Response to Second Set of Interrogatories filed.
PDF:
Date: 05/16/2011
Proceedings: Department's Response to Petitioner Retreat House, LLC's, Second Request for Production of Documents filed.
PDF:
Date: 05/16/2011
Proceedings: Notice and Certificate of Service of Respondent DEP's Response to Petitioner Retreat House, LLC First Set of Interrogatories filed.
PDF:
Date: 05/11/2011
Proceedings: Notice of Filing Respondent, Pamela C. Damico's Third Supplemental Response to Petitioners First Request for Production.
PDF:
Date: 05/05/2011
Proceedings: Respondents Notice of Service of Fourth Set of Interrogatories to Petitioner Retreat House, LLC filed.
PDF:
Date: 05/03/2011
Proceedings: Order Compelling Better Discovery Responses, Denying Motion to Dismiss, and Denying Motion to Deem Admissions.
PDF:
Date: 04/28/2011
Proceedings: Order Denying Motion to Compel Deposititon, or for Continuance, or to Prohibit Testimony.
PDF:
Date: 04/26/2011
Proceedings: Re-Notice of Taking Deposition of Dr. William A. Carter Duces Tecum filed.
PDF:
Date: 04/26/2011
Proceedings: Respondent, Pamela C. Damico's Response to Petitioner's Motion to Compel Deposition of Joseph Damico, Continue Trial and/or in the Alternative, to Prohibit Joseph Damico's Presence at the Final Hearing filed.
PDF:
Date: 04/20/2011
Proceedings: Notice of Cancellation of Taking Deposition (of D. Evans) filed.
PDF:
Date: 04/20/2011
Proceedings: Notice of Cancellation of Taking Deposition (of S. Kirwan) filed.
PDF:
Date: 04/20/2011
Proceedings: Supplement to Motion to Compel Filed by Respondent, Pamela C. Damico on April 15, 2011 filed.
PDF:
Date: 04/20/2011
Proceedings: Respondent, Pamela C. Damico's, Notice of Service of Third Set of Interrogatories to Petitioner, Retreat House, LLC filed.
PDF:
Date: 04/20/2011
Proceedings: Motion to Compel Deposition of Joseph Damico, Continue Trial and/or in the Alternative, to Prohibit Joseph Damico's Presence at the Final Hearing filed.
PDF:
Date: 04/20/2011
Proceedings: Petitioner's Response in Opposition to Motion to Compel filed.
PDF:
Date: 04/18/2011
Proceedings: Notice of Filing Respondent, Pamela C. Damico's Second Supplement Response to Petitioners First Request for Production.
PDF:
Date: 04/15/2011
Proceedings: Motion to Compel Better Discovery Responses to Respondent, Pamela C. Damico's Second Request for Production and Second Set of Interrogatories and/or Motion to Dismiss Amended Petition for Formal Administrative Hearing and/or to Deem Respondent's First Request for Admissions Admitted filed.
PDF:
Date: 04/14/2011
Proceedings: Retreat House, LLC's First Set of Interrogatories to Department of Environmental Protection filed.
PDF:
Date: 04/14/2011
Proceedings: Second Request for Production to State of Florida Department of Environmental Protection filed.
PDF:
Date: 04/13/2011
Proceedings: Notice of Taking Video Conference Deposition Duces Tecum (of T. Rach) filed.
PDF:
Date: 04/08/2011
Proceedings: Order Denying Motion for Summary Final Order.
PDF:
Date: 04/06/2011
Proceedings: Notice of Taking Deposition (Dr. William Carter) filed.
PDF:
Date: 04/06/2011
Proceedings: Petitioner's Reply to Respondents' Responses in Opposition to Motion for Summary Final Order filed.
PDF:
Date: 04/05/2011
Proceedings: Respondent, Pamela C. Damico's Response to Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 04/05/2011
Proceedings: Respondent, Department of Environmental Protection's Response to Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 04/04/2011
Proceedings: Notice of Filing Respondent, Pamela C. Damico's, Supplemental Response to Petitioners First Request for Production of Documents filed.
PDF:
Date: 03/30/2011
Proceedings: Petitioner's Supplement to Motion for Summary Final Order filed.
PDF:
Date: 03/29/2011
Proceedings: Appendix in Support of Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 03/29/2011
Proceedings: Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 03/29/2011
Proceedings: Order Denying Motion to Compel Better Discovery Responses, Motion to Dimsiss, and Motion to Deem Admissions.
PDF:
Date: 03/28/2011
Proceedings: Reply to Petitioner's Response to Respondents' Motion to Compel filed.
PDF:
Date: 03/25/2011
Proceedings: Petitioner's Response in Opposition to Motion to Compel Better Responses to Second Request for Production and Second Set of Interrogatories and/or Motion to Dismiss Amended Petition for Formal Administrative Hearing and/or to Deem Respondent's First Request for Admissions Admitted filed.
PDF:
Date: 03/24/2011
Proceedings: Order Denying Motion for Protective Order.
PDF:
Date: 03/23/2011
Proceedings: Petitioner's Response in Opposition to Motion for Protective Order filed.
PDF:
Date: 03/23/2011
Proceedings: Notice of Taking Video Deposition Duces Tecum - Lucy Blair filed.
PDF:
Date: 03/22/2011
Proceedings: Motion to Compel Better Responses to Respondent, Pamela C. Damico's Second Request for Production and Second Set of Interrogatories and/or Motion to Dismiss Amended Petition for Formal Administrative Hearing and/or to Deem Respondent's First Request for Admissions Admitted filed.
PDF:
Date: 03/22/2011
Proceedings: Notice of Cancellation of Deposition (of R. Peekstok) filed.
PDF:
Date: 03/22/2011
Proceedings: Motion for Protective Order filed.
PDF:
Date: 03/18/2011
Proceedings: Order Striking and Denying Motion to Compel Production of Documents.
PDF:
Date: 03/17/2011
Proceedings: Plaintiff's Notice of Serving Response to Pamela C. Damico's Second Set of Interrogatories filed.
PDF:
Date: 03/17/2011
Proceedings: Petitioner Retreat House LLC's Response to Pamela C. Damico's Second Request for Production filed.
PDF:
Date: 03/17/2011
Proceedings: Petitioner Retreat House LLC's Response to Pamela C. Damico's Request for Admissions filed.
PDF:
Date: 03/11/2011
Proceedings: Order Denying Motions to Compel.
PDF:
Date: 03/11/2011
Proceedings: Retreat House LLC's Response to Damico's Motions to Compel Better Answers to First Set of Interrogatories and First Request for Production filed.
PDF:
Date: 03/09/2011
Proceedings: Notice of Filing Verified Return of Service - Sean Kirwan filed.
PDF:
Date: 03/09/2011
Proceedings: Notice of Filing Verified Return of Service - Debra Evans filed.
PDF:
Date: 03/09/2011
Proceedings: Order on Motion for Protective Order.
PDF:
Date: 03/09/2011
Proceedings: Notice of Taking Video Deposition of Ron Peekstok filed.
PDF:
Date: 03/08/2011
Proceedings: Response in Opposition to Motion for Protective Order filed.
PDF:
Date: 03/07/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for July 6 through 8, 2011; 9:00 a.m.; Islamorada, FL).
PDF:
Date: 03/04/2011
Proceedings: Notice of Unavailability filed.
PDF:
Date: 03/04/2011
Proceedings: Motion to Compel Petitioner, Retreat House, LLC, Better Responsse to Respondent, Pamela C. Damico's First Request for Production filed.
PDF:
Date: 03/04/2011
Proceedings: Motion to Compel Petitioner, Retreat House, LLC, Better Answers to Respondent, Pamela C. Damico's First Set of Interrogatories filed.
PDF:
Date: 03/04/2011
Proceedings: Response to Petitioner's Motion to Compel Production of Document's and Respondent Pamela Damico's Motion to Strike Petitioner's Motion to Compel Production of Documents filed.
PDF:
Date: 03/04/2011
Proceedings: Respondent, Department of Environmental Protection's Motion to Continue Final Hearing filed.
PDF:
Date: 03/04/2011
Proceedings: Notice of Filing Verified Returns of Service filed.
PDF:
Date: 03/03/2011
Proceedings: Motion for Protective Order filed.
PDF:
Date: 03/03/2011
Proceedings: Plaintiff's Motion to Compel Production of Documents filed.
PDF:
Date: 03/03/2011
Proceedings: Notice of Taking Deposition Duces Tecum - Sean Kirwan filed.
PDF:
Date: 03/03/2011
Proceedings: Notice of Taking Deposition Duces Tecum - Debra Evans filed.
PDF:
Date: 03/02/2011
Proceedings: Re-notice of Taking Deposition Duces Tecum - Michael Dooley filed.
PDF:
Date: 03/01/2011
Proceedings: Re-notice of Taking Deposition of Joseph Damico filed.
PDF:
Date: 02/28/2011
Proceedings: Re-notice of Taking Deposition of Pamela C. Damico filed.
PDF:
Date: 02/25/2011
Proceedings: Notice of Taking Deposition of Joseph Damico filed.
PDF:
Date: 02/25/2011
Proceedings: Notice of Taking Deposition of Pamela C. Damico filed.
PDF:
Date: 02/18/2011
Proceedings: Respondent Pamela Damico's Request for Admissions filed.
PDF:
Date: 02/18/2011
Proceedings: Respondetns Notice of Service of Second Set of Interrogatories to Petitioner Retreat House, LLC filed.
PDF:
Date: 02/18/2011
Proceedings: Respondent Pamela Damico's Second Request for Production filed.
PDF:
Date: 02/15/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 21 through 23, 2011; 9:00 a.m.; Islamorada, FL).
PDF:
Date: 02/15/2011
Proceedings: Respondent, Pamela C. Damico's Response to Petitioners Second Request for Production filed.
PDF:
Date: 02/14/2011
Proceedings: Plaintiff's Response to Pamela C. Damico's First Request for Production filed.
PDF:
Date: 02/14/2011
Proceedings: Plaintiff's Notice of Filing Response to Pamela C. Damico's First Set of Interrogatories filed.
PDF:
Date: 02/14/2011
Proceedings: Second Joint Motion to Continue Final Hearing filed.
PDF:
Date: 02/14/2011
Proceedings: Joint Motion to Continue Final Hearing filed.
PDF:
Date: 02/10/2011
Proceedings: Second Request for Production to Pamela C. Damico filed.
PDF:
Date: 02/10/2011
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for June 7 through 9, 2011; 9:00 a.m.; Islamorada, FL).
PDF:
Date: 02/09/2011
Proceedings: Agreed Notice of Final Hearing filed.
PDF:
Date: 02/09/2011
Proceedings: Respondent, Pamela C. Damico's Response to Petitioner's Motion for Extension of Final Hearing filed.
PDF:
Date: 02/09/2011
Proceedings: Notice of Cancellation of Depositions (of M. Dooley, S. Kirwan, and P. Damico) filed.
PDF:
Date: 02/07/2011
Proceedings: Department's Response to Petitioner Retreat House, LLC's First Request for Production of Documents filed.
PDF:
Date: 02/07/2011
Proceedings: Respondent, Pamela C. Damico's Response to Petitioner's First Request for Production filed.
PDF:
Date: 02/04/2011
Proceedings: Respondent, Pamela C. Damico's Notice of Serving Answers to Interrogatories filed.
PDF:
Date: 02/03/2011
Proceedings: Re-Notice of Taking Deposition Duces Tecum - Sean Kirwan filed.
PDF:
Date: 02/03/2011
Proceedings: Second Re-Notice of Taking Deposition Duces Tecum - Celia Hitchins filed.
PDF:
Date: 02/03/2011
Proceedings: Re-Notice of Taking Deposition of Pamela C. Damico filed.
PDF:
Date: 02/02/2011
Proceedings: Plaintiff's Motion for Extension of Final Hearing filed.
PDF:
Date: 02/01/2011
Proceedings: Re-Notice of Taking Deposition Duces Tecum (of M. Dooley) filed.
PDF:
Date: 01/25/2011
Proceedings: Re-Notice of Taking Deposition Duces Tecum (of C. Hitchins) filed.
PDF:
Date: 01/25/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of S. Kirwan) filed.
PDF:
Date: 01/18/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of H. DeLashmutt) filed.
PDF:
Date: 01/14/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of D. Barrow) filed.
PDF:
Date: 01/14/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of D. Horton) filed.
PDF:
Date: 01/14/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of M. Dooley) filed.
PDF:
Date: 01/13/2011
Proceedings: Notice of Taking Deposition of Pamela C. Damico filed.
PDF:
Date: 01/12/2011
Proceedings: Petitioner's Notice of Service of First Set of Interrogatories to Defendant Pamela C. Damico filed.
PDF:
Date: 01/12/2011
Proceedings: First Request for Production to Pamela C. Damico filed.
PDF:
Date: 01/12/2011
Proceedings: First Request for Production to State of Florida Department of Environmental Protection filed.
PDF:
Date: 01/12/2011
Proceedings: Respondent's First Request for Production filed.
PDF:
Date: 01/12/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of C. Hutchins) filed.
PDF:
Date: 01/12/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of P. Wells) filed.
PDF:
Date: 01/12/2011
Proceedings: Notice of Taking Deposition Duces Tecum (of B. Franck) filed.
PDF:
Date: 01/05/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 01/05/2011
Proceedings: Notice of Hearing (hearing set for March 22 through 24, 2011; 9:00 a.m.; Islamorada, FL).
PDF:
Date: 01/05/2011
Proceedings: Order Denying Motion to Dismiss.
PDF:
Date: 01/04/2011
Proceedings: Petitioner Retreat House's Response to Initial Order filed.
PDF:
Date: 12/29/2010
Proceedings: Amendment to Response to Initial Order filed.
PDF:
Date: 12/29/2010
Proceedings: Respondent Damico's Notice of Adoption and Joinder of Respondent, Department of Environmental Protection's Response to Petitioner's Motion to Dismiss filed.
PDF:
Date: 12/29/2010
Proceedings: Amended Certificate od Service filed.
PDF:
Date: 12/29/2010
Proceedings: Order Granting Extension of Time.
PDF:
Date: 12/29/2010
Proceedings: Respondent, Department of Environmental Protection's Response to Petitioner's Motion to Dismiss filed.
PDF:
Date: 12/27/2010
Proceedings: Respondent, Department of Environmental Protection and Respondent, Pamela C. Damico's Response to Initial Order filed.
PDF:
Date: 12/27/2010
Proceedings: Motion for Extension of Time to Comply with Initial Order filed.
PDF:
Date: 12/27/2010
Proceedings: Petitioner's Motion to Dismiss filed.
PDF:
Date: 12/20/2010
Proceedings: Initial Order.
PDF:
Date: 12/17/2010
Proceedings: Answer to Petitioner's Amended Request for Formal Administrative Evidentiary Hearing filed.
PDF:
Date: 12/17/2010
Proceedings: Consolidated Environmental Resource Permit filed.
PDF:
Date: 12/17/2010
Proceedings: Amended Petition for Formal Evidentiary Hearing filed.
PDF:
Date: 12/17/2010
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
J. LAWRENCE JOHNSTON
Date Filed:
12/17/2010
Date Assignment:
12/20/2010
Last Docket Entry:
01/13/2012
Location:
Tavernier, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Related DOAH Cases(s) (3):

Related Florida Statute(s) (13):

Related Florida Rule(s) (12):