97-000342 Kelly Cadillac, Inc., And Hudson Construction Company vs. Resort Hospitality Enterprises, Ltd., And Department Of Environmental Protection Status: Closed Recommended Order on Friday, January 30, 1998.

Summary: Preponderance of evidence justified granting of coastal construction control line permit. Building on pilings, deck and pool of frangible construction, with dune rejuvenation, showed no adverse impact to dune system.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KELLY CADILLAC, INC., and )

HUDSON CONSTRUCTION CO. , )

)

Petitioners , )

)

and )

)

GEORGE CHERRY , )

)

Intervenor , )

)

vs. ) Case No. 97-0342

)

FLORIDA DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, and RESORT HOSPITALITY )

ENTERPRISES, LTD. , )

)

Respondents. )

______________________________________)

RECOMMENDED ORDER

This cause came on for formal proceeding before P. Michael

Ruff, duly designated Administrative Law Judge. A formal hearing

was held in this matter on September 18, 1997, in Tallahassee,

Florida. The appearances were as follows:

APPEARANCES

For Petitioners : Bram D. E. Canter, Esquire

103 North Meridian Street

Tallahassee, Florida 32301

For Respondent

Agency: Thomas J. Mayton, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Intervenor : Bram D. E. Canter, Esquire

103 North Meridian Street

Tallahassee, Florida 32301

For Respondent

Applicant: Thomas G. Tomasello, Esquire

Watkins, Tomasello and Caleen

1315 Lafayette Street, Suite B

Tallahassee, Florida 32301

Neil H. Butler, Esquire

Butler and Long, P.A.

Post Office Box 839

Tallahassee, Florida 32302-0839

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding concern whether

the Department of Environmental Protection (DEP) has jurisdiction

over the activities encompassed by Permit Application BA-475

(Amended) and, if so, whether issuance of the permit complies

with the applicable provisions of Section 161.053, Florida

Statutes, and Chapter 62B-33, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon DEP’s Notice of Intent to issue a

coastal construction control line permit to Resort Hospitality

Enterprises, Ltd (RHE), concerning proposed beachfront

construction involving a restaurant, an associated deck, and a

pool. The permit application was filed on July 11, 1995, and

designated file number BA-475 by DEP. Later the applicant

requested, and was granted, a modification of the permit which

was designated “BA-475 Amend.”

Thereafter, Petitioners Kelly Cadillac, Inc., and Hudson

Construction Co., owners of townhouses adjacent to the proposed

restaurant project, jointly filed a timely petition challenging

the Department’s intent to issue "BA-475 Amend." A Petition for

Leave to Intervene was subsequently filed by George Cherry,

another adjacent property owner.

Before the Final Hearing, RHE filed a Motion to Relinquish

Jurisdiction, urging that DEP’s previous emergency Order, which

established an interim control line following hurricane Opal was

invalid, and that DEP was otherwise without authority to assert

regulatory jurisdiction over the proposed restaurant project. A

ruling on that motion was deferred since it was determined that

proof of certain facts would be necessary in order to adjudicate

issues raised by the motion. The parties were therefore afforded

an opportunity to present evidence at the Final Hearing

concerning the jurisdictional issue.

The cause came on for hearing as noticed. The parties'

joint Exhibits 1 and 2, were admitted into evidence, as were

Respondents' RHE Exhibits 1 through 15 and DEP Exhibits 1 and 2.

The Petitioners' and Intervenor’s Exhibits 1, 2, 3 and 5 were

admitted into evidence. The Respondent RHE presented the

testimony of four (4) witnesses, Bayne Collins, accepted as an

expert in architecture; Sean McNeil, accepted as an expert in the

area of stormwater system design; Michael Walther, accepted as an

expert in coastal engineering; and Kirby Green, the Deputy

Secretary of the DEP. The Respondent DEP presented the testimony

of two (2) witnesses, Tony McNeal, accepted as an expert in

coastal engineering, and Kirby Green. The Petitioners and

Intervenor presented the testimony of three (3) witnesses,

Patrick Kelly; Ong-In Shin, accepted as an expert in coastal

engineering, and George Cherry, the Intervenor.

Upon conclusion of the hearing, a transcript was ordered and

the parties were allowed to file Proposed Recommended Orders

within a time certain after the filing of the final transcript of

the record, which was a post hearing deposition of George Cherry.

The Proposed Recommended Orders were timely filed and have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

Undisputed Facts :

1. The following relevant facts are established by

stipulation or admission and are not disputed.

a. The proposed project is landward of the seasonal high

waterline within thirty (30) years of December 1996 ;

b. The project will not interfere with public access ;

c. The project will not result in the net excavation of in

situ sandy soils seaward of the coastal construction control line

(CCCL);

d. Any sandy soil or material excavated for the proposed

project seaward of the control line will remain seaward of the

control line or setback and be placed in the immediate area of

construction;

e. The proposed project complies with the structural

provisions of Rule 62B-33.007(2), Florida Administrative Code ;

f. The proposed project complies with Rules

62B-33.007(3)(a) through (d) and (f) through (h), Florida

Administrative Code.

Additionally at hearing, the Petitioners and Intervenor

announced that they would not present any evidence on the issue

of adverse impacts on marine turtles. Accordingly, impacts on

marine turtles are not at issue in this proceeding.

Project Description :

2. RHE has proposed constructing a restaurant, pool, deck

and stormwater basin within the Boardwalk Beach Resort on Panama

City Beach, in Bay County, Florida. The Boardwalk Beach Resort

consists of four (4) multi-story hotels with six hundred (600)

rooms all together, several pools, boardwalks extending the

length of the property and approximately seventeen hundred

(1,700) to eighteen hundred (1,800) feet of beach front property.

The project site is between Thomas Drive to the north and the

Gulf of Mexico to the south.

3. On July 23, 1996, RHE applied to the Department for a

CCCL permit to construct, seaward of the interim line established

by the emergency Order of October 16, 1995, the restaurant,

swimming pool and deck. Part of the proposed deck was located

seaward of the coastal construction setback line. On December 9,

1996, the Department issued a permit to RHE to construct the

restaurant building with an attached deck fifteen (15) feet

landward of the location originally proposed by RHE, as well as

for construction of the swimming pool.

4. On December 16, 1996, the Department issued to RHE an

Amended CCCL permit authorizing construction of a restaurant

building located five (5) feet landward of the location

originally proposed by RHE, as well as a deck re-designed so that

it would be structurally independent of the restaurant, a

swimming pool and a dune enhancement plan which would restore the

sandy dune seaward of the pool and restaurant location to its

pre-hurricane Opal condition and elevation. The Amended permit

would require re-vegetation of the dunes at the site with native

plants to secure the dunes from erosion. Both the original and

the Amended permits authorized the removal of the stormwater

drainage pipe that carried stormwater onto the beach that had

caused erosion of the beach near the project area.

5. On January 9, 1997, the Petitioners timely filed a

Petition challenging the Department’s decision to issue the

Amended permit. On February 7, 1997, the Department established

a new CCCL line for Bay County that was farther landward than

either the old coastal construction setback line or the interim

line established in the October 1995 emergency order. The

project authorized by the Amended permit would thus be located

entirely seaward of the newly established CCCL for Bay County.

6. As of February 7, 1997, the date the new line was

established, RHE had not begun working on the foundation or

continued construction above the foundation for any of the

structures authorized by the Amended permit. The Department

determined that the project did not meet the requirements of

Section 161.053(9), and Rule 62B-33.004(1), Florida

Administrative Code, so as to qualify for an exemption from

complying with the newly established CCCL for Bay County, as the

project was not “under construction” at the time the new CCCL was

established.

7. The beach and dunes system is wide and the dune system

is a significant one, with elevations of fourteen (14) to sixteen

(16) feet NGVD, with a wide dune crest. The dry sandy beach in

front of the site, even after hurricane Opal struck, remained

approximately one hundred twenty-five (125) feet wide.

8. From 1855 to 1934 the shoreline of the site was mildly

accretional. Thereafter, until 1955 accretion was less

significant, but from 1955 to 1976 became significant. From

February 1992 through April 1995, the project site experienced a

period of mild erosion. Accordingly the long-term data shows, in

essence, that the shoreline is relatively stable at the site.

9. Hurricane Opal caused the dune to erode or retreat

landward by approximately a distance of fifteen (15) feet.

Hurricane Opal was a major magnitude storm with one hundred

twenty-five (125) mile per hour sustained winds and one hundred

forty-four (144) mile per hour measured gusts when it came ashore

in the vicinity of the proposed site. The dune portion of the

proposed site now essentially mimics the pre-Opal conditions.

Following hurricane Opal the applicants spent approximately Four

Hundred Thousand Dollars ($400,000.00) in dune restoration along

the entire shoreline of the resort property, some seventeen

hundred (1,700) to eighteen hundred (1,800) feet of shoreline.

That dune restoration work was permitted by the Department.

There is now little native salt-tolerant vegetation on the site

in its natural pre-construction condition.

10. An existing stormwater drainage pipe and catch basin

extend onto the beach seaward of the location of the proposed

restaurant. The existing pipe and basin have caused erosion of

the beach and the sand dune system on the project site. Under

the amended permit proposal the stormwater pipe and basin would

be removed. All of the proposed structures authorized by the

Amended permit would be landward of the pre-Opal coastal

construction control line. The proposed pool will be located

landward of the dune crest and fifty-five (55) feet landward of

the toe of the dune. The proposed restaurant would also be

located landward of the dune crest and two hundred five (205)

feet landward of the mean high waterline.

11. The original design of the project was for a much

larger, three story restaurant. The original pool design called

for a one hundred twenty foot pool extending from in front of the

Comfort Inn to beneath the proposed restaurant, in effect being

located on the first floor of the restaurant. At DEP’s request

the size of the pool was reduced by fifty percent (50%) and it

was relocated into the shadow of the Comfort Inn next door so

that it will no longer serve as an integral part of the

restaurant. Pool depths were also reduced to three (3) feet at

DEP’s request. The pool, at DEP’s request, will now be

constructed of Gunnite concrete material and will be frangible ,

that is, it will be designed to break up in storm-surge or

storm-waves. This will serve to decrease the erosion which could

be caused by storm-waves flowing over and around the pool

structure. The same is true of the restaurant deck, which at

DEP’s request has been re-designed to be separate from the

restaurant and also designed to fail in storm conditions. The

frangibility of the deck, as now proposed, will retard erosion

during storm conditions, as the stormwater or waves will demolish

the deck and remove it rather than scouring the sand dune around

it.

12. The Department also requested that the existing

stormwater drain pipe and catch basin be removed and such a

removal has been made a condition of the subject permit. This

will require that the applicant design and build a new stormwater

system. The applicant has agreed to this condition and the

others referenced above.

Vegetation :

13. Construction of the proposed project will not r esult in

the removal or destruction of native vegetation. There is no

such vegetation on the site where the construction will take

place. Thus, construction of the project will not result in

removal or destruction of native vegetation which will either

cause de-stabilization of a "frontal, primary or significant

dune" or cause a significant adverse impact to the beach and dune

system due to increased erosion by wind or water. A special

condition of the proposed amended permit requires that the

applicant submit a dune enhancement plan for restoration of the

dunes seaward of the pool and restaurant to its pre-hurricane

Opal condition, including re-vegetation. Such a plan was

submitted by the applicant and it includes the planting of sea

oats on one (1) foot centers. The planting of sea oats as part

of the dune enhancement plan will constitute a significant

improvement to the native vegetation situation at the site.

Disturbance of Sandy Soils :

14. The project will not result in the removal or

disturbance of in situ sandy soils of the beach and dunes system

to such a degree as to have an adverse impact on the system.

That is, the existing ability of the system to resist erosion

during a storm will not be reduced. The proposed project will

not result in the removal or disturbance of in situ sandy soils

of the beach and dune system to such a degree as to cause adverse

impact to those systems by lowering existing levels of storm

protection to upland properties and structures.

15. All the sandy material excavated for the pool and the

stormwater basin will be placed seaward of these structures on

the dune in the immediate area of the construction and seaward of

the CCCL.

16. The additional sand to be placed on the dune as part of

the dune enhancement plan will, in fact, enhance the ability of

the system to resist erosion during the storm. The ability of

the dune to resist storm erosion is primarily a function of the

quantity of sand within the dune system.

17. The additional sand to be placed on t he dune as part of

the dune enhancement plan will enhance the protection of upland

properties and structures including those of the Petitioners and

Intervenor. Excavation of the stormwater basin will not

destabilize the dune on the project site. The applicant is

moving the stormwater basin landward by twenty (20) feet which

will minimize the potential impacts of the basin on the dune

system.

18. The preponderant evidence establishes that the

structure of the pool and pool deck will not cause an increase in

structure-induced scour of such a magnitude as to measurably

affect shoreline change rates. Scour caused by the pool will not

significantly interfere with the beach-dune system's ability to

recover from a coastal storm. The frangible design of the pool

decreases the likelihood that it will cause any scour. It will

break up in a storm so that any scour caused by the pool would be

minimal. Any scour caused by the pool would not disturb the

topography or vegetation such that the coastal system would

become unstable or suffer catastrophic failure. Scour would have

no measurable effect.

19. The proposed restaurant and deck will not cause an

increase in structure-induced scouring during a storm of such a

magnitude as to have a significant adverse impact. The

restaurant and deck will be constructed on piles. Scouring

around piles, in a storm situation, is very localized and

insignificant. By constructing the restaurant and deck on piles

at the design elevation, storm-surge and storm-waves will pass

under the deck and restaurant.

20. The restaurant and deck are located a sufficient

distance landward of the beach and frontal dune to permit natural

shoreline fluctuations. The structures will be built on pilings

and will be elevated above the storm-surge; thus they will not

interfere with shoreline fluctuations. The restaurant and deck

are located a sufficient distance landward of the beach and

frontal dune so as to preserve and protect beach and dune system

stability, in terms of the lack of interference with such.

21. Other structures in the area are seaward of the

proposed restaurant and deck, including Pineapple Willies

Restaurant, located eleven hundred feet to the west. Those

structures have not caused instability of the beach during

hurricane Opal. Typically, existing structures do not cause

instability of the dune systems.

22. The restaurant and deck are located a sufficient

distance landward of the beach and frontal dune so as to allow

for natural recovery to occur following storm-induced erosion.

Natural recovery commonly occurs under pile-supported elevated

structures which is not the case with “slab-on-grade” structures

which are not elevated. The pool and pool deck will permit

natural shoreline fluctuations, will preserve and protect beach

and dune stability, and will allow recovery after a storm because

they are designed as frangible structures that will fail and

disintegrate in a storm situation. Thus they will not

appreciably affect the beach-dune system.

Line of Construction :

23. Most coastal construction in Bay County extends out to

the pre-Opal CCCL while some construction extends beyond it.

Throughout Bay County the line of construction is the pre-Opal

CCCL. The line of construction is determined by the most seaward

extent of similar existing structures in the immediate area of

the proposed structure under consideration in a CCCL permit

application. The proposed pool is landward of the line of

construction determined by existing pools within the boardwalk

beach resort.

2 4. There are a number of existing multi-story structures

to the east of the proposed restaurant that are located out to

the pre-Opal CCCL. That pattern of construction continues to the

east of the proposed restaurant. Approximately one thousand

(1,000) feet to the east of the proposed restaurant is an

existing multi-story major structure that is built out to the

pre-Opal CCCL. The beach in the area of the project is highly

developed with commercial and condominium buildings.

25. Within eleven hundred to twelve hundred feet to the

west of the proposed restaurant there is another major structure

built out to the pre-Opal CCCL. Just beyond that structure are a

number of additional major structures, including Pineapple

Willie's Restaurant, that are constructed out to the pre-Opal

CCCL.

26. The multi-story major structures to the east and west

of the proposed structure are within the immediate area of the

restaurant. The proposed restaurant is located landward of the

line of construction established by these major structures within

its immediate area. That line of construction is the pre-Opal

CCCL.

27. DEP did not consider major structures more than one

thousand (1,000) feet from the proposed restaurant when it

determined the line of construction for the restaurant. It is

DEP’s policy when reviewing CCCL applications not to consider

structures more than one thousand (1,000) feet from a proposed

structure when determining the line of construction. The one

thousand (1,000 ) foot limit DEP uses to determine the line of

construction is not embodied in a rule. There was no

preponderant coastal engineering or other scientific evidence

which justifies the one thousand (1,000) foot limit DEP imposes

when it determines the line of construction. It was appropriate

to consider the existing structures referenced above in assessing

the line of construction for this amended permit application and

considering those lying just beyond the one thousand (1,000) foot

distance, because those existing structures dominate the coastal

processees in the region and only lie just beyond one thousand

(1,000) feet to the east and twelve hundred (1,200) feet to the

west.

28. If the Department had considered the above-referenced

existing major structures just beyond one thousand (1,000) feet

of the proposed restaurant, it would have been shown that the

proposed project was landward of the thus established line of

construction. No preponderant evidence was offered to explicate

why the one thousand (1,000 ) foot limit was automatically adhered

to in this situation. Moreover, the line of construction is not

a prohibition in and of itself but rather is only one of several

criteria that must be balanced in determining whether or not to

approve a CCCL permit application. Projects have been approved

seaward of the line of construction in the past.

Minimization

29. The location of the swimming pool at the most

practicable landward location, the reduced size of the pool, as

well as its frangible design and limited depth, has minimized its

impact. The placing of the excavated material in the pool’s

immediate area and the restoration of the dune in front of the

pool and deck have minimized the impacts of the pool and deck.

30. The construction of the restaurant on pilings with its

design elevation above storm-surge and storm-wave elevations,

together with locating it behind the dune crest and away from the

active beach, has minimized the impact of the restaurant. The

deck is on pilings as well, elevated above storm-surge and

storm-wave levels. It will be physically separate from the

restaurant and its design frangibility (so that it will fail in a

storm) results in its impact being minimized. The stormwater

basin is located as far landward as practicable. Its location

and the placing of the materials excavated for the basin on the

dune immediately adjacent to the basin has minimized the impact

of the proposed stormwater basin on the beach-dune system.

31. The restaurant, pool, deck, and stormwater system will

not have a significant adverse impact to the beach-dune system.

The restaurant will not adversely affect exiting shoreline change

rates, will not significantly interfere with recovery following a

storm, and will not disturb topography or vegetation such that

the system will become unstable or suffer catastrophic failure.

Cumulative Impacts

32. The proposed project will not have an unacceptable

cumulative impact. There are no other proposed similar projects

to take into account and a cumulative impact assessment has shown

there to be no adverse cumulative impact. No evidence was

offered to show that an unacceptable adverse cumulative impact in

terms of existing or other proposed projects will result.

Positive Benefit

33. The proposed project will have a net positive benefit

on the beach-dune system. The removal of the slab-on-grade

constructed building will have a beneficial impact because it

will reduce the chance of storm erosion to the beach-dune system

posed by such structures. The existing stormwater pipe and catch

basin which cause erosion would be removed, resolving that

erosion problem. Stormwater will now be retained in a new

stormwater basin designed to serve 1.7 acres and it will not flow

onto the beach for any rainfall event up to a one hundred year

design storm. The new stormwater system is designed to recover

quickly after a storm event and to treat stormwater. The removal

of the stormwater pipe and catch basin, and the installation of

the new stormwater basin will have a positive benefit to the

beach-dune system. The new stormwater system complies with

Special Permit Condition 7.

34. Moreover the applicant will restore the dune seaward of

the project to its pre-hurricane Opal condition and will plant

sea oats, on one foot centers, throughout the restoration area in

accordance with Special Permit Condition 1.8. Such restoration

of the dune and vegetation will benefit the beach-dune system.

The natural recovery process will take several decades without

the placement of sand in the dune restoration project. The dune

enhancement plan submitted by the applicant, in order to comply

with Special Permit Condition 1.8, exceeds the requirements of

that condition since it places more sand on the dunes than

necessary to achieve pre-Opal conditions. Testimony of expert

witness Michael Walhter, which is accepted, establishes that

restored beaches and dunes function much like natural ones in

storm events even though they can be somewhat inferior in

resistance to storm-surge and waves since the sand is not as

compacted at first. This dune enhancement plan, however, exceeds

the permit requirements by placing more sand than necessary on

the dunes to achieve pre-Opal conditions.

The Interim CCCL

35. On October 16, 1995, the DEP issued its emergency Order

establishing an interim CCCL for Bay County one hundred feet

landward of the pre-Opal CCCL. The Department established that

interim line in order to regulate coastal development in the wake

of Hurricane Opal.

36. In 1978 the Legislature established crit eria to be used

by DEP in establishing or re-establishing all CCCL’s. They are

thus to be established to define that portion of a beach-dune

system subject to severe fluctuations from a one hundred year

storm event. At the time of Hurricane Opal, DEP had not

re-established the Bay County CCCL using a one hundred year storm

event criterion. The interim CCCL for Bay County established by

the above-referenced emergency Order did not utilize nor was it

based on the statutory one hundred year storm event criterion.

All twenty-three (23) other CCCL’s that have been established

based on the statutory one hundred year storm event criterion

were established by rule. As of January 15, 1997, the applicant

had received all governmental approvals necessary to begin

construction of the proposed project except for that which is the

subject of this proceeding. On January 22, 1997, DEP by letter

advised the applicant to cease and desist construction of the

project. On February 7, 1997, the Department by rule then taking

effect established a new CCCL.

CONCLUSIONS OF LAW

Jurisdiction

37. Section 161.053, Florida Statutes, provides:

(1) (a). The legislature finds and declares

that the beaches in this state and the

coastal barrier dunes adjacent to such

beaches, by their nature, are subject to

frequent and severe fluctuations and

represent one of the most valuable natural

resources of Florida and that it is in the

public interest to preserve and protect them

from imprudent construction which can

jeopardize the stability of the beach-dune

system, accelerate erosion, provide

inadequate protection to upland structures,

endanger adjacent properties, or interfere

with public beach access. . . . Special

siting and design considerations shall be

necessary seaward of established coastal

construction control lines to insure

protection of the beach-dune system, proposed

or existing structures, and adjacent

properties and the preservation of public

beach access.

(5)(a). The Department may authorize an

excavation or erection of a structure at any

coastal location. . . upon receipt of an

application from a property and/or riparian

owner and upon the consideration of facts and

circumstances, including:

1. Adequate engineering data concerning

shoreline stability and storm tides related

to shoreline topography;

2. Design features of the proposed

structures or activities; and

3. Potential impacts of the location of such

structures or activities upon such beach-dune

system, which, in the opinion of the

Department, clearly justify such a permit.

(b). If in the “immediate contiguous or

adjacent area” a number of existing

structures have established a reasonably

continuous and uniform construction line

closer to the line of mean high water than

the foregoing [referring to the place where

potential impacts clearly justify a permit]

and if the existing structures have not been

unduly affected by erosion, a proposed

structure may, at the discretion of the

Department, be permitted along such

line. . . .

(c). The Department may condition the

nature, timing, sequence of construction of

permitted activities to provide protection to

nesting sea turtles and hatchlings and their

habitat, pursuant to s.370.12, and to native

salt-resistant vegetation and endangered

plant communities. . . .

(f). The Department may, as a condition to

granting of a permit under this section,

require mitigation, financial or other

assurances acceptable to the Department as

may be necessary to assure performance of

conditions of a permit or enter into

contractual agreements to best assure

compliance with any permit conditions.

38. Section 161.053(6), Florida Statutes, provides, in

part:

(b). After October 1, 1985, and

notwithstanding any other provision of this

part, the Department, or a local government

to which the Department has delegated

permitting authority pursuant to subsections

(4) and (16), shall not issue any permit for

any structure. . . which is proposed for a

location which, based on the Department’s

projections of erosion in the area, will be

seaward of the seasonal high-waterline within

30 years after the date of application for

such permit. . . .

39. Section 62B-33.002, Florida Administrative Code,

concerning “definitions” provides pertinently as follows:

(5). “Beach and Dune System” is that portion

of the coastal system where there has been or

there is expected to be over a period of time

and as a matter of natural occurrence,

cyclical and dynamic emergence, destruction

and reemergence of beaches and dunes. . . .

(13). “Dune” is a mound, bluff or ridge of

loose sediment, usually sand-sized sediment,

lying upland of the beach and deposited by

any natural or artificial mechanism, which

may be bare or covered with vegetation, and

is subject to fluctuations in configuration

and location. . . .

(a). “Significant dune” is a dune which has

sufficient height and configuration or

vegetation to offer protective value.

(b). “Primary dune” is a significant dune

which has sufficient along-shore continuity

to offer protective value to upland property.

The primary dune may be separated from the

frontal dune by an interdunal trough;

however, the primary dune may be considered

the frontal dune if located immediately

landward of the beach.

(14). “Erosion” is the wearing away of land

or the removal of consolidated or

unconsolidated material from the beach and

dune system by wind, water or wave

action. . . .

(22). “Immediately Adjacent Properties” are

properties lying contiguous to a property

proposed for construction including

properties separated by a road, right-of-way

or accessway and those seaward and landward

of the property. . . .

(23). “Impacts” are those effects, whether

direct or indirect, short or long term, which

are expected to occur as a result of

construction and are defined as follows:

(a). “Adverse Impacts” are impacts to the

coastal system that may cause a measurable

interference with the natural functioning of

the system.

(b). “Significant Adverse Impacts” are

adverse impacts of such magnitude that they

may:

1. Alter the coastal system by:

(a). Measurably affecting the existing

shoreline change rage ;

(b). Significantly interfering with its

ability to recover from a coastal storm;

(c). Disturbing topography or vegetation

such that the system become unstable, or

suffers catastrophic failure . . . .

2. Cause a take, as defined in Section

370.12(1), Florida Statutes, unless the take

is incidental pursuant to Section

370.12(1)(f), Florida Statutes.

(c). “Minor Impacts” are impacts associated

with construction which are not adverse

impacts due to their magnitude or temporary

nature.

(d). “Other Impacts” are impacts associated

with construction which may result in damage

to existing structures or property or

interference with lateral beach access.

(27). “Mitigation” is an action or series of

actions by the applicant that will offset

impacts caused by a proposed or existing

construction project.

40. Section 62B-33.005, Florida Administrative Code,

provides, in part:

2). In order to demonstrate that

construction is eligible for a permit, the

applicant shall provide the Department with

sufficient information pertaining to the

proposed project to show that any impacts

associated with the construction have been

minimized and that the construction will not

result in a significant adverse impact.

(3). After reviewing all information

required pursuant to this Chapter, the

Department shall:

( a). Deny any application for an activity

which either individually or cumulatively

would result in a significant adverse impact

including potential cumulative effects of a

proposed activity, the Department shall

consider the short-term and long-term impacts

and the direct and indirect impacts the

activity would cause in combination with

existing structures in the area and any other

activities proposed within the same fixed

coastal cell. . . .

(b). Require practicable siting and design

criteria that minimize adverse impacts, and

mitigation of adverse of other impacts.

(4). The Department shall issue a permit for

construction which an applicant has shown to

be clearly justified by demonstrating that

all standards, guidelines and other

requirements set forth, in the applicable

provisions of Part I, Chapter 161, Florida

Statutes, and this Chapter are met, including

the following:

(a). The construction will not result in

removal or destruction of native vegetation

which would either destabilize a frontal,

primary or significant dune or cause a

significant adverse impact to the beach and

dune system due to increased erosion by wind

or water;

(b). The construction will not result in

removal or disturbance of in situ sandy soils

of the beach and dune system to such a degree

that a significant adverse impact to the

beach and dune system would result from

either reducing the existing ability of the

system to resist erosion during a storm or

lowering existing levels of storm protection

to upland properties and structures;

(c). The construction will not result in the

net excavation of the in situ sandy soils

seaward of the control line or 50 foot

setback;

(d). The construction will not cause an

increase in structure-induced scour of such

magnitude during a storm that the structure-

induced scour would result in a significant

adverse impact. . . .

(e). The activity will not interfere with

public access, as defined in Section 161.021,

Florida Statutes; and

(f). The construction will not cause

significant adverse impact to marine turtles

immediately adjacent properties or the

coastal system unless otherwise specifically

authorized in this Chapter.

(5). Sandy material excavated seaward of the

control line or 50 foot setback shall remain

seaward of the control line or setback and be

placed in the immediate area of construction

unless otherwise specifically authorized by

the permit.

(6). Major structures shall be located a

sufficient distance landward of the beach and

frontal dune where practicable to permit

natural shoreline fluctuations, to preserve

and protect beach and dune system stability

and to allow natural recovery to occur

following storm-induced erosion. . . .

(7). If in the immediate area a number of

existing major structures have established a

reasonably continuous and uniform

construction line and if the existing

structures have not been unduly affected by

erosion, except where not allowed by the

requirements of Section 161.053(6), Florida

Statutes, and this Chapter, the Department

shall issue a permit for the construction of

a similar structure up to that line, unless

such construction would be inconsistent with

Subsections (6) or (8) of this section.

41. Rule 62B-33.00(6), Florida Administrative Code,

provides in pertinent part:

(1). All structures shall be designed so as

to minimize any expected adverse impact on

the beach-dune system or adjacent properties

and structures and shall be designed

consistent with Section 62B-33.005, Florida

Administrative Code.

42. The Petitioners and Intervenor have standing to advance

their claims. Chapter 161, Florida Statutes, and Chapter 62B-33,

Florida Administrative Code, have as their express purpose the

protection of the interests of adjacent property owners

concerning adverse impacts to the beach-dune system, et cetera .

The Petitioners' and Intervenor’s concerns about the adverse

impacts to the beach-dune system posed by this amended

application are within the zone of interests to be protected by

the subject statutes and rules. The record evidence reveals that

the Petitioners and Intervenor are not only concerned about the

adverse impact they fear is posed by the project on their beach

view and on the economic value of their townhouse properties, but

also the potential adverse impacts to the beach-dune system which

they fear may cause an adverse impact to the physical integrity

of their property itself.

Jurisdictional Issue :

43. The applicant has asserted in this proceeding that the

Department’s Emergency Final Order, establishing the interim

control line one hundred feet landward of the pre-hurricane Opal

control line is invalid. The validity of such an emergency order

issued pursuant to Section 120.59(3), Florida Statutes, has been

the subject of a number of court decisions. Nordman v. Fla.

Dept. of Agriculture and Consumer Services , 473 So. 2d 278 (Fla.

5th DCA 1985) ; Criterion Ins. Co. v. Fla. Dept. of Insurance , 458

So. 2d 22 (Fla. 1st DCA). In one emergency order case Calder

Race Course, Inc. v. Board of Business Regulation , 319 So. 2d 67

(Fla. 1st DCA 1975), the court rejected an argument similar to

the one advanced by the applicant in this case to the effect that

the agency’s emergency order effectuated a policy that really

required rule-making under Section 120.54. The court held that

agencies have the power to act by emergency order independent of

the rule-making provisions of Section 120.54. Notably, all of

the reported cases involving review of an order issued under

Section 120.59(3), were initiated by an action in circuit court

or in an appellate court. Such an Emergency Final Order may not

be challenged or collaterally attacked before the Division of

Administrative Hearings.

44. The applicant never raised a timely challenge to the

Emergency Final Order in circuit court or an appellate court as

required by Section 120.68, Florida Statutes. Instead it

collaterally attacked the Emergency Final Order in this

proceeding. When jurisdiction of an agency is questioned by a

party in a licensing proceeding such as this, it is proper to

determine whether there exists an order, rule or statute that

purports to confer the authority under which jurisdiction is

asserted. Once the order, rule or statute has been identified

and found on its face to grant jurisdiction, such an inquiry in

the licensing proceeding ends. It is not appropriate in a

licensing proceeding to inquire into the validity of an order,

rule or statute that purports to grant regulatory jurisdiction

over the subject matter at hand. Such an inquiry is only

possible in a timely filed action in the appropriate forum

directly challenging the order, rule or statute. See Smith v.

Willis , 415 So. 2d (Fla. 1st DCA 1982).

45. Insofar as the undersigned is aware from the record in

this case, no such challenge to the Emergency Final Order at

issue was ever filed by the applicant. Since the Emergency Final

Order confers permitting jurisdiction over the subject project

and application, the issue of the Department’s jurisdiction must

be resolved in the affirmative for purposes of this licensing

proceeding.

46. Moreover, pursuant to Section 161.053(9), Florida

Statutes, the applicant could only have been exempt from

application of the new control line established by rule on

February 7, 1997, by demonstrating that its restaurant project

was already “under construction” at that time. Neither the

statute nor the rule exempts activities that are merely permitted

prior to the establishment of a new control line. The term

“under construction” is defined in Rule 62B-33.004(1)(a), Florida

Administrative Code, as “the ongoing physical activity . . . of

placing the foundation, or continuation of construction above the

foundation of, any structure seaward of the established control

line. . . .” No such construction had been commenced by the

applicant prior to the adoption of the new control line on

February 7, 1997. Because the applicant’s restaurant project was

not under construction when the new control line went into

effect, the project required a coastal control line permit from

DEP even if there had been no interim control line set up in the

subject Emergency Final Order.

47. The applicant maintained that it was placed in a

dilemma and therefore did not commence construction, because it

had received a letter from the Department notifying it that a

Petition challenging its permit application had been filed and it

was therefore at risk to proceed with construction. The dilemma

was unnecessary for two (2) reasons. First, when the Department

told the applicant that it was at risk to proceed, it was only

stating an axiom of administrative law. Proposed agency action

remains preliminary and non-final when a Petition challenging a

permit application requesting a hearing has been filed so that

the agency action is thus under challenge. Boca Raton Artificial

Kidney Center, Inc. v. Delray Artificial Kidney Center , 475

So. 2d 260 (Fla. 1st DCA 1985). Secondly, RHE’s permit did not

allow construction to commence until the submittal of final

engineering drawings as required by Rule 62B-33.008(2)(f) 16,

Florida Administrative Code. RHE admitted that it had not met

this permit condition until after the establishment of the new

control line in February 1997.

48. Where there is a change in the law during the pendency

of a license application, the law in effect at the time of the

final hearing controls, rather than a law in effect when the

application was filed or when the agency reached its preliminary

or initial decision. See Agency for Health Care Administration

v. Mount Sinai Medical Center of Greater Miami , 22 Fla. L. Weekly

D886b (Fla. 1st DCA April 1997). That decision upheld

application of an agency rule that had changed after the

application at issue had been submitted. See Lavernia v. DPR ,

616 So. 2d 53 (Fla. 1st DCA 1993), which affirmed the Final Order

which applied an amended statutory provision that was amended

after an applicant had filed its petition challenging denial of

its application for licensure. Such a rule of law is appropriate

because the administrative process, including formal proceedings

before the Division of Administrative Hearings, is designed to

formulate an agency’s final decision, rather than merely review

an agency’s initial decision. See Department of Transportation

v. JWC Corporation, and Department of Environmental Regulation ,

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

49. During the pendency of RHE’s application in this case

for its CCCL permit there was a change in the law concerning the

line of CCCL permitting jurisdiction, that is, the new rule which

went into effect February 7, 1997. RHE contends that the

Department lacks CCCL permitting jurisdiction based on the law in

effect at the time of its application because its current project

is completely landward of the old setback line and because of its

contention that the interim line set up by the above-discussed

Emergency Final Order does not apply because that emergency order

is invalid. Wholly aside from the discussion and conclusion

above concerning the validity for purposes of this proceeding of

that Emergency Final Order, the law requires that the undersigned

consider RHE’s application based on the law in effect at the time

of the hearing, not at the time of the application for the

permit. At the time of this hearing the CCCL had been

re-established by the rule which took effect on February 7, 1997

for Bay County. That rule was in effect prior to the hearing in

this proceeding and RHE’s entire project is seaward of that line.

See Rule 62B-26.024, Florida Administrative Code. Thus for this

reason also, jurisdiction over this project is vested in the

Department.

Vegetation Issue

50. Section 161.053(5)(c), Florida Statutes, and

Rule 62B-33.005(4)(a), Florida Administrative Code, require the

protection of native, salt-tolerant vegetation and endangered

plant communities. The applicant demonstrated compliance with

these provisions. The evidence demonstrates that there is little

if any native, salt-tolerant vegetation on the site and to the

extent that there is, it will not be affected by the proposed

project. Sea oats will be planted on one foot centers on the

restored dune in front of the proposed structures. This planting

will enhance native, salt-tolerant vegetation on the site. There

is no evidence of endangered plant communities on the site, and

therefore no evidence that any such will be adversely impacted by

the project. The evidence at hearing demonstrates that any sandy

materials excavated during construction will not result in any

net excavation and that all such materials will be placed seaward

of the CCCL. This renders the application and proposed project

in compliance with Rules 62B-33.005(4)(c) and 62B-33.005(5),

Florida Administrative Code, in these respects.

Seasonal High Waterline

51. The Petitioners and Intervenor have admitted that the

proposed project complies with the seasonal high waterline

provisions of Section 161.053(6)(b), Florida Statutes. It also

complies with Rule 62B-33.005(8), Florida Administrative Code.

Hence the seasonal high waterline provisions are not at issue in

this case.

Public Access

52. The Petitioners and Intervenor have likewise admitted

that the proposed project complies with the public access

provisions of Section 161.053(5)(e), Florida Statutes and

Rule 62B-33.005(4)(f), Florida Administrative Code. Thus the

protection of public access is not at issue with regard to this

project and application.

Stable Shoreline

53. The preponderant evidence shows that the shoreline at

the site has been stable for a long period of time. The

applicant has shown the proposed project is consistent with

Section 161.053(5)(a)(1), Florida Statutes.

Cumulative Impact

54. Section 161.053(5)(a)(3), Florida S tatutes and

Rule 62B-33.005(3)(a), Florida Administrative Code, set limits on

cumulative impacts. Pursuant to Rule 62B-33.005(5)(a)(3),

Florida Administrative Code, only the cumulative impact of the

proposed project, in concert with existing and proposed projects,

may be considered. No other proposed projects were identified.

Therefore there is no cumulative impact in terms of this project

and other proposed projects. Neither was any evidence offered

that the project in relation to existing projects would cause an

unacceptable adverse impact. Rather, the preponderance of

evidence shows that there will be no adverse cumulative impact.

Thus the application and project complies with the cumulative

impact requirement of Rule and Statute.

Significant Adverse Impacts

55. Concerning Rule 62B-33.005(4)(b), Florida

Administrative Code, and in keeping with the definition of

significant adverse impacts in Rule 62B-33.005(22)(b), Florida

Administrative Code, the preponderant evidence shows that the

construction of the project will not result in the removal or

disturbance of sandy soils to such an extent as to reduce the

existing ability of the system to resist erosion during a storm

or to lower existing levels of storm protection. By definition,

significant adverse impacts are those that have measurable

effects or cause significant interference or catastrophic

failure. The amount of excavation required for the stormwater

basin and the pool will not have measurable effects or cause such

interference or catastrophic failure. All excavated materials

will be placed on the dune. Resort Hospitality, the applicant,

is required to restore the dune to the pre-hurricane Opal

condition. The dune enhancement plan goes beyond that

requirement. The ability of the dune system to resist erosion

and protect upland property is directly proportional to the

amount of sand in the dune system. So, in terms of existing

conditions which are the conditions that must be assessed under

DEP’s rules, the project will actually increase the ability of

the dune system to resist erosion and to protect upland property.

The Petitioners and Intervenor, while expressing concern about

the project offer no definitive evidence of “measurable effects”

or “significant interference” and offered no evidence of

“catastrophic failure.” Thus the preponderant evidence is not

refuted and shows that the project meets the strictures of

Rule 62B-33.005(4)(b), Florida Administrative Code.

56. The scouring effects of the proposed project must cause

a significant adverse impact in order for the project to fail in

compliance with Rule 62B-33.005(4)(d), Florida Administrative

Code. Preponderant evidence shows that the project will not

cause scouring effects that cause any measurable impacts or

significant interference or catastrophic failure. The restaurant

and deck will be constructed on pilings. While piling

construction can cause some scour, those effects are localized

and of little consequence. Pilings and structures above them do

not cause catastrophic failure or significant interference due to

scouring effects. Indeed, the Department requires that major

structures be built on pilings in large part to minimize the

impact of those structures on the beach-dune system and to allow

storm-surge and storm-waves to pass under the structures, thus

minimizing scour induced erosion by storm-surge and storm-waves.

The proposed project as such complies with Rule 62B-33.005(4)(b),

Florida Administrative Code, and is consistent with the

provisions of Section 161.053(5)(a)(3), Florida Statutes.

57. The record does not support a finding that the proposed

project would have measurable effects or cause significant

interference or catastrophic failure. Thus it will have no

significant adverse impact under the above-cited definitional

provisions of Chapter 62B-33, Florida Administrative Code. The

preponderant evidence shows that the very design of the

structures involved in the project will cause little

interference, measurable effects or catastrophic failure on the

beach-dune system at issue since they are designed to be

frangible and thus to fail in accordance with their design as a

result of storm-surge or wave action or, in the case of the

restaurant, for the storm-surge or storm-waves to pass under them

due to being elevated on piling. In fact the proposed project

will result in some net positive benefits to the beach-dune

system. It thus complies with Rule 62B-33.005(2), Florida

Administrative Code.

Location

58. The project complies with Rule 62B-33.005(6), Flo rida

Administrative Code. The restaurant and pool are landward of the

dune crest and not on the active beach. The restaurant and

stormwater basin are located as far landward as practicable in

view of existing site conditions, including buildings and parking

areas. The proposed structures will not interfere with natural

shoreline fluctuations and will allow natural recovery since they

are on pilings or alternatively, in the case of the pool and

deck, are designed with frangibility built in so that they will

break up in the event of storm-surge or storm-waves of a

design-storm magnitude such that they will not cause significant

erosion or scouring. None of the structures are significant

enough nor designed so as to adversely affect dune stability.

59. One Department witness at hearing attempted to offer

testimony that the deck fronting the restaurant should not be

permitted because it would not allow dune recovery following a

storm. This testimony might be viewed as an impermissible change

of position by DEP and as a violation of due process for the

applicant. See Manatee County v. Department of Environmental

Regulation , 429 So. 2d 360, 362 (Fla. 1st DCA 1983); and Hopwood

v. Department of Environmental Regulation , 402 So. 2d 1296

(Fla. 1st DCA 1981). If such is indeed a change of position by

DEP in mid-hearing, it did not give Resort Hospitality adequate

notice of its intent to change its position concerning the

installation of the restaurant deck. The applicant did not know

of that change until the testimony was under way. Whether this

constitutes a change without adequate due process notice of the

agency’s position in this regard is of little consequence,

however, because the testimony of that witness is not persuasive.

60. The deck was made structurally separate from the

restaurant and also designed to be frangible under storm

conditions at the Department’s own insistence. The preponderant

persuasive evidence offered at hearing demonstrates that such

frangible structures do not adversely affect the beach-dune

system nor exacerbate erosion-scouring problems. That is

precisely why they are designed to be frangible, that is, to

minimize their effects. Since the deck will disintegrate in a

storm, it will not affect recovery of the beach-dune system after

the storm since it will not longer be present. Whether the deck

is re-constructed after the storm or not is a matter for another

proceeding and another permit application. Even if the deck were

a permanent structure, it would not have a measurable impact on

recovery of the beach-dune system since it will be supported on

pilings in any event. Such pile-supported structures were shown

to have little inhibition on recovery of the beach-dune system.

Thus Rule 62B-33.005(6), Florida Administrative Code, will be

complied with.

Line of Construction

61. The line of construction provision of Rule

62B-33.005(7), Florida Administrative Code, is not an absolute

prohibition to construction seaward of that line. The plain

language of the rule and the Department’s permitting policy and

practice indicate that if certain conditions apply, the

Department shall permit construction at least out to the line but

there is no prohibition on the Department permitting structures

beyond that line. In fact, it has permitted structures beyond

the line of construction in the past. In practice, the line of

construction is one of a number of factors that the Department

considers and balances in its permit review process. Even if the

proposed project extended seaward of the line of construction,

when all other criteria are weighed and balanced, such a fact

would not justify permit denial.

62. The record indicates, however, that the proposed

structures do not extend beyond the line of construction. The

line of construction is determined by the most seaward extent of

similar existing structures. Most coastal construction in Bay

County extends out to the pre-Opal CCCL and throughout the county

the line of construction is the pre-Opal CCCL.

63. There are a number of ext ensive multi-story structures

in the immediate area to the east and west of the proposed

restaurant that were built out to the pre-Opal CCCL. The

Department did not consider these structures when determining the

line of construction for this project because they are more than

one-thousand (1,000) feet from the proposed project. The

proposed project is located landward of the line of construction

established by these major structures. Had DEP considered these

existing major structures, it would have determined that the

proposed project is landward of the line construction. When

determining the line of construction the Department’s policy is

not to consider structures more than one thousand (1,000) feet

from a proposed structure in determining that line of

construction. The one thousand (1,000) foot limitation is not in

the Department rules, however, and, based on testimony at the

hearing, no persuasive coastal engineering or other scientific

reason for the one thousand (1,000) foot limitation in the

Department’s consideration was established. No evidence was

offered by the Department to support the one thousand (1,000 )

foot limit as an agency policy as it should do in order to prove

the rationality of such an agency policy. See Section

120.57(1)(e), Florida Statutes (Any agency action based on an

unadopted rule is subject to de novo review, and the agency must

demonstrate that the unadopted rule is supported by competent

substantial evidence). See also Agency for Health Care

Administration v. Orlando Regional Health Care System, Inc. ,

617 So. 2d 385 (Fla. 1st DCA 1993).

64. In terms of coastal processes, the extensive multi-

story structures to the east and west of the proposed project

dominate coastal processes in the "immediate area" of the

project. In terms of coastal processes and coastal impact, those

structures are in the immediate area of the proposed project.

Based on DEP’s own testimony, it is apparent that the agency

ignored its own rule in rejecting the pre-Opal CCCL as the line

of construction. It did so not on the basis of the location of

structures, but because the line based on those structures was

apparently not environmentally acceptable to it. See Rule

62B-33.005(6), Florida Administrative Code. Moreover, there was

no dispute at hearing that the pool was landward of the line of

construction. In view of these facts the application, as

amended, is consistent with Rule 62B-33.005(7), Florida

Administrative Code.

Minimization

65. All of the structures were designed to minimize t heir

impacts. The size and depth of the pool was significantly

reduced. The pool is located as far landward as practicable and

was designed to be frangible and thus cause less impact in a

storm. Likewise, all material excavated from the pool site will

be placed on the dune thus enhancing the dune. The restaurant

and deck are supported on piling which elevate the structures

above the storm-surge and storm-waves. This will in turn

minimize the potential impact on the beach-dune system and

minimize their construction impacts on that system.

Additionally, the deck is separated structurally from the

restaurant and designed to be frangible as well. Thus it will

fail in a storm, minimizing its storm impacts and its impacts on

recovery processes of the beach-dune system. The restaurant is

landward of the dune crest and well landward of the mean high

waterline, as well as of the active beach. In view of these

design considerations, the project complies with minimization

criteria in Rules 62B-33.005(2) and 62B-33.007(1), Florida

Administrative Code.

Mitigation

66. Rule 62B-33.005(3)(b), Florida Administrative Code,

requires mitigation of adverse impacts. The project will result

in a net positive benefit to the beach-dune system. The dunes

will be immediately restored to pre-hurricane Opal conditions.

Had the site been left to restore itself naturally, decades would

have been required in order for it to recover. The dune

restoration project will immediately increase the ability of the

site to resist erosion and to protect upland property. As part

of the project a slab-on-grade structure, which is very conducive

to erosion and scouring, was removed from the site to be replaced

by less harmful pile-supported structures. The site, as it

exists today, has little if any-salt tolerant native vegetation.

After the project, the restored dunes will be planted with sea

oats. Also, the existing storm water pipe and catch basin, which

is causing erosion on the site and discharging untreated

stormwater to the beach, will be removed. A new stormwater

system will be installed that eliminates stormwater discharges to

the beach except in extreme storm events, solving the current

erosion problem. Thus the project was shown to be in compliance

with Rule 62B-33.005(3)(b), Florida Administrative Code.

Dune Recovery

67. The Petitioners and Intervenor contend that the project

will prevent the beach-dune system from recovering from the

impacts of hurricane Opal. The Petitioners' and Intervenor's own

expert, however, admits the dune system already mimics the dune

system before Opal. Although the Petitioners and Intervenor

appear to prefer that the system be left to recover naturally, on

balance the evidence supports the conclusion that restoring the

dune immediately by man-made measures is preferable to waiting

decades for natural recovery to occur. Dune restoration will

immediately improve the dune system's ability to resist erosion

and its ability to protect upland properties, including the

Petitioners' and Intervenor’s property. Restored dunes provide

essentially the same function as naturally restored dunes. The

only perceivable difference between natural and man-made recovery

is the angle of the dune scarp following a storm, as well as the

fact that naturally restored dunes have more compaction of sand

and thus are somewhat more erosion-resistant. The restoration of

the dune system will still constitute a net positive benefit,

however, and the proposed project will not deter the beach

recovery itself since the project does not extend out onto the

active beach.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, and the candor and

demeanor of the witnesses, it is, therefore,

DETERMINED: That the Department of Environmental Protection

has jurisdiction over the proposed project and that it is,

therefore, recommended that a Final Order be entered granting the

Respondent, Resort Hospitality’s CCCL application consistent with

the terms and conditions espoused by the Final Order of

December 17, 1997, Respondent’s Exhibit 2 and the project plans

depicted in Respondent’s Exhibits 3 and 4.

DONE AND ENTERED this 30th day of January, 1998, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax F iling [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of January, 1998.

COPIES FURNISHED:

Bram D. Canter, Esquire

103 North Meridian Street

Tallahassee, Florida 32301

Thomas I. Mayton, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Thomas G. Tomasello, Esquire

1315 East Lafayette Street, Suite B

Tallahassee, Florida 32301

Neil H. Butler, Esquire

Butler and Long, P.A.

Post Office Box 839

Tallahassee, Florida 32302-0839

Kathy Carter, Agency Clerk

Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Office of General Counsel

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.