04-003592 Steven D. Huff And Dion Deloof vs. Eric M. Flanagan And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, September 1, 2005.

Summary: The applicant did not prove, by a preponderance of the evidence, that he was entitled to build a single-family dwelling seaward of the Coastal Construction Control Line.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN D. HUFF and DION DELOOF, )

)

Petitioners, )

)

vs. ) Case No. 04-3592

)

ERIC M. FLANAGAN and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was given, and on May 10, 2005, the final hearing

was held in this case. Pursuant to Sections 120.569 and

120.57(1), Florida Statutes, the final hearing was conducted by

Charles A. Stampelos, Administrative Law Judge, in Fort Myers,

Florida.

APPEARANCES

For Petitioners: Edwin A. Steinmeyer, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

For Respondent Department of Environmental Protection:

Mark S. Miller, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent Eric M. Flanagan:

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini, Hart

& Swett, P.A.

1625 Hendry Street, Suite 301

Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

Whether, pursuant to Part I of Chapter 161, Florida

Statutes, and Florida Administrative Code Rule 62B-33,

Respondent, Eric M. Flanagan (Flanagan), is entitled to

construct a single-family dwelling seaward of the Coastal

Construction Control Line (CCCL).

PRELIMINARY STATEMENT

On October 2, 2003, Flanagan filed with the Department of

Environmental Protection, Bureau of Beaches and Coastal Systems

(Department), an application to construct a single-family

dwelling seaward of the CCCL on Lot R-3 on North Captiva Island,

Lee County, Florida.

On August 2, 2004, the Department issued a Final Order

pursuant to Section 161.053, Florida Statutes, authorizing

construction of the Flanagan's single-family dwelling, with

conditions. On the same date, the Department issued a "Notice

to Proceed Withheld" to Flanagan.

After the Department granted Petitioners an extension of

time, on September 22, 2004, Petitioners filed a petition with

the Department challenging the Department's proposed agency

action to approve Flanagan's CCCL permit.

On October 19, 2004, the case was referred to the Division

of Administrative Hearings (Division).

On October 19, 2004, this matter was set for a final

hearing to commence of January 25, 2005. Subsequently, a motion

for continuance was granted for good cause shown, and the final

hearing was reset to commence on May 10-12, 2005, in Fort Myers,

Florida.

On May 6, 2005, the parties filed a joint pre-hearing

stipulation.

During the final hearing, Joint Exhibits (JE) 1 through 3

were admitted into evidence without objection. (Joint Exhibit 1

begins with the Department's Final Order. T 84.)

Flanagan called four witnesses: Ted B. Urban, a

professional land surveyor and an expert in general land

surveying; Geza Wass de Czege, an expert in vegetative mapping;

Lawrence E. Hildreth, a professional engineer and an expert in

civil engineering; and Tony McNeal, Program Administrator for

the Department's CCCL Program and an expert in coastal

engineering and agency interpretation of the Department's CCCL

permitting regulations. Flanagan Exhibits (FE) 1 through 8 were

admitted into evidence without objection.

The Department also called Mr. McNeal and offered no

exhibits other than the Joint Exhibits.

Petitioners called three witnesses: Steven D. Huff;

William E. Bean, a professional land surveyor and an expert in

surveying and CCCL permit surveying; and Karyn M. Erickson, an

expert in coastal processes, coastal construction permitting,

and coastal planning, design, and engineering. Petitioners'

Exhibits (PE) 1 through 13 were admitted into evidence without

objection.

At the conclusion of the hearing, the parties were given 30

days after the filing of the final hearing transcript to file

their proposed recommended orders. The hearing Transcript (T)

was filed with the Division on May 31, 2005.

On June 10, 2005, Respondents filed an unopposed joint

motion to extend the deadline for filing proposed recommended

orders. On June 13, 2005, the joint motion was granted and the

parties were given until August 1, 2005, to file their proposed

recommended orders. The parties filed proposed recommended

orders and they have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

The Parties

1. Eric M. Flanagan owns an undeveloped lot (Lot R-3) (the

Property) at 530 Gulf Lane, North Captiva Island, Lee County,

Florida.

2. The easternmost 25 feet of Lot R-3 contains a road

easement (Gulf Drive). (Gulf Drive is also referred to as Gulf

Lane.) Gulf Drive is an unpaved, sandy roadway/trail which runs

south to north. The westernmost boundary of the Property is the

Gulf of Mexico. Lot R-3 is vacant. All of Lot R-3 is seaward

of the CCCL.

3. Steven D. Huff (Huff) owns a single-family residence at

531 Gulf Lane, North Captiva Island, Lee County, Florida, which

is adjacent to and immediately across Gulf Drive to the east

(landward) of Flanagan's Property and the proposed project.

4. Dion DeLoof (DeLoof) owns a single-family residence at

541 Gulf Lane, North Captiva Island, Lee County, Florida, which

is adjacent to and immediately across Gulf Drive to the

southeast (landward) of the Property and the proposed project.

5. The Department is the agency responsible for

administering the program for construction activities seaward of

the CCCL pursuant to Part I of Chapter 161, Florida Statutes,

and Florida Administrative Code Rule 62B-33.

The Application and Department Review

6. On October 2, 2003, Lawrence E. Hildreth, P.E., on

behalf of Flanagan, filed an application with the Department,

for a permit for construction seaward of the CCCL or 50-foot

setback. 1 On October 2, 2003, the Department also received two

boundary surveys for the Property, with and without the location

of the proposed dwelling. (One boundary survey is signed by

Ted B. Urban, a professional land surveyor, and dated August 21,

2003, and received by the Department on October 2, 2003.

Several other floor plans were provided on sheets G and 1

through 6. Fifteen concrete pilings are shown on the "ground

floor plan," sheets 0.1 and G.)

7. A letter dated September 5, 2003, advised that the Lee

County Zoning Staff reviewed the Flanagan project and determined

that it "currently does not contravene zoning codes and is

generally consistent with the Lee County Land Development Code."

8. On October 27, 2003, the Department advised Mr.

Hildreth that the application was incomplete, including the need

for two copies of a topographic survey drawing of the Property,

showing, in part, the location of the erosion control line,

contour line corresponding to elevation 0 (NGVD), and the

location of the seasonal high-water line in relationship to the

CCCL. See Fla. Admin. Code R. 62B-33.0081. The Department

advised that "[i]n order to get a favorable recommendation, the

proposed project has to be landward of the line of construction,

30-year erosion projection and sufficient distance landward of

the top of the dune."

9. By letter dated April 21, 2004, and received by the

Department on April 23, 2004, Mr. Hildreth responded to the

Department's October 27, 2003, letter and provided the

Department with topographic surveys showing, in part, the

location of the proposed project, the high water line,

approximate seasonal high water line, approximate vegetation

line, flood zone line, contours at various elevations from the

high water line landward to Gulf Drive, and the applicable CCCL.

The submitted site plan, showing this information, was prepared

by Mr. Urban and dated March 24, 2004. See also FE 3. Mr.

Urban also prepared a boundary survey, which included most of

the information set forth on the site plan, but also included,

written by hand (although the author is not known), a notation

of the location of the "30-year erosion projection," which was

designated to be "121 feet" seaward of the approximate location

of the old CCCL. Mr. Hildreth also submitted other drawings,

designated "not for construction," sheets 01 through 11.

10. Mr. Hildreth represented in his April 21, 2004, letter

that "[t]here is no excavation or fill proposed except for the

installation of the septic tank" and that "[a] landscape drawing

is not provided as the existing site vegetation is being

retained except for under the house and over the septic system."

11. On or about April 29, 2004, the Department's

Srinivas M. Tammisetti, P.E., requested Jennie Cowart, Field

Engineer, to provide a site inspection report and current

photographs of the project site.

12. It appears that the Department considered the

application complete as of April 23, 2004.

13. The Department's file contains a three-page "Site

Inspection Report" dated June 4, 2004, apparently prepared by

Jennie Cowart, who did not testify in this case. There is a

description of the proposed construction area and beach dune

system as follows:

This site is adjacent to the dune system and

beach area. This vacant lot is 2 lots south

of LE-1024 (which required a variance to

build seaward of the old CCCL. LE-1024 has a

Notice to Proceed but has not been started.

There are no existing structures in the

general vicinity north and south of this lot

on the seaward side of Gulf Lane (a sand

path). The dune system here is well

established with a primary and secondary

dune. There are no existing dune walkovers

nearby. The location of the proposed septic

[sic] is not shown on the reduced site plan.

But the road easement is shown along the

landward side of the proposed house;

therefore, the septic [sic] would have to go

on the seaward side of the structure. If

this is the case, the septic [sic] would be

within the coastal scrub and dune area. The

proposed structure may have an adverse affect

on the dune system from lighting (if not in

strict compliance) and from the septic

system. Construction fencing would be needed

to protect the vegetated dune.

A vegetation analysis is provided in the Site Inspection Report

and percent-coverage, and natural conditions are also identified

for specific types of vegetation. Vegetation comments are also

provided: "The area within the building footprint is mostly

mature seagrape, sabal palm, and woody coastal species. There

are some large pepper trees near the road. The coastal scrub

area is approx 75' wide with a series of dunes. There is no

clear existing path to the sandy beach." There are four

photographs attached to the report which are difficult to read.

14. The Department's file also contains a "memo to file"

dated June 16, 2004, from Emmett Foster, P.E., Florida State

University Beaches & Shores Resource Center, with the subject

being "[r]eview of 30 Year Erosion Estimate, R-69 to R-70

Vicinity, Lee County." Mr. Foster was asked by Department staff

to review the erosion situation between Department reference

monuments R-69 to R-70. (The Property is between approximately

180 to 255 feet south of R-69.) Mr. Foster stated in his

June 16, 2004, memorandum: "A review of the erosion situation

has been preformed, as requested. The recommendation remains as

described in the previous 4/28/92 memorandum for this area, copy

attached with an updated mhw data table and copies of profile

plots." Mr. Foster is referring to a Memorandum dated April 28,

1992, from him to Mr. McNeal providing erosion information for

the area between R-69 to R-70, in which Mr. Foster ultimately

recommended using the most landward shoreline Mean High Water

Line (MHWL) and Seasonal High Water Line (SHWL) of record, the

1982 Department of Natural Resources (DNR) survey as the 30-year

erosion projection. See JE 1, April 28, 1992, Memorandum and

attached data for Mr. Foster's analysis of the area. See also

Endnote 4. (Mr. McNeal testified during the final hearing that

he used this information to establish the 30-year erosion

projection line.)

15. On July 12, 2004, the Department received a revised

site plan dated July 9, 2004, prepared by Mr. Urban, showing the

location of a proposed septic tank, seaward of the proposed

dwelling. See also FE 4. This is not the permitted location of

the septic tank and drain field. See JE 1, Final Order.

16. On or about June 20, 2004, Mr. Tammisetti prepared a

memorandum to Mr. McNeal describing, in part, the proposed

project. Mr. Tammisetti provided a general description of the

beach/dune system: "Subject property has low ground elevation

and appears to have viable dune and coastal strand/scrub

vegetation. The segment of shoreline is unarmored and sparsely

developed. It is subject to random fluctuations due to the

effects of offshore shoals. Hence this shoreline experience is

both erosion and accretion." He further stated: "Recommended

location of 30-year erosion projection is the most landward

(MHWL and SHWL) shoreline of record." See Finding of Fact 14.

He indicated that the seasonal high water elevation is plus 3.8

feet (NGVD). The Department had permitted two previous projects

in the area: LE-707, which was issued and expired in 2000, but

was never built, and LE-1024 (the Duboy lot), which was issued a

notice to proceed, but has not yet been built. Mr. Tammisetti

determined that the "[p]roposed project is landward of line of

construction and 30-year erosion projection. Impactive shore-

parallel coverage is approximately 80%. Proposed project is

sited sufficient distance landward of MHWL, SHWL, vegetation

line and frontal dune." Mr. Tammisetti recommended approval of

the project with special permit conditions.

17. On or about July 28, 2004, Mr. Hildreth provided the

Department with a vegetation map created by Geza Wass de Czege.

The vegetation map is for the Property and is dated March 13,

2003. T 32-37. See also FE 6 which is the same map with better

clarity. This map (FE 6) provided a description for 0.47 acres

of the Property from the shoreline to Gulf Drive as follows:

CODE DESCRIPTIONS ACRES

652 Shoreline Beach 0.10

312 Coastal 0.10

Herbaceous Dune

322H Coastal 0.12

Herbaceous Scrub

322C Coastal Scrub 0.11

w/Cabbage Palm

8145 Graded Golf 0.04

Cart Road

T O T A L 0 . 4 7

18. On August 2, 2004, the Department issued a "Notice to

Proceed Withheld," indicating that the Department approved a

permit for construction or other activities seaward of CCCL for

Flanagan. The Department noted, however, that "construction may

not commence until after the permittee has received a notice to

proceed in accordance with Special Permit Conditions 1, 2, 3, 4

and 5, and permittee complies with any preconstruction

requirements described in Special Permit Conditions 6."

19. On August 2, 2004, the Department also issued a Final

Order with Findings of Fact and Conclusions of Law. This Final

Order providing conditions including requirements that the

single-family dwelling be located a maximum of 200 feet seaward

of the CCCL and constructed of a pile foundation; and have a

900-gallon septic tank and drain field such that "[t]he onsite

disposal system's septic tank and chamber pipes located a

maximum of 220 feet seaward of the control line" with

"[c]onstruction limits located a maximum of 225 feet seaward of

the control line." Flanagan was also required as a special

permit condition to provide "[a] landscape and dune restoration

plan depicting the mitigation of construction impacts to native

salt tolerant vegetation." Special Condition 2 also provided:

Prior to issuance of the notice to proceed,

the permittee shall submit for approval a

landscape plan to minimize and mitigate

construction impacts to dune vegetation.

Existing dune vegetation shall be disturbed

only to the minimum extent necessary to

complete work within the authorized

construction limits and shall be protected by

rigid construction fences. As determined to

be feasible by the Department and prior to

commencement of construction activities,

native vegetation within the authorized

construction limits shall be transplanted to

suitable bare areas seaward of the control

lineansplanted vegetation shall be

maintained, irrigated and/or fertilized to

ensure a 75% survival rate for a minimum of

one growing season. The permittee shall

plant a mix of a minimum of three native

salt-tolerant species within any disturbed

areas seaward of the authorized structures.

These plantings shall consist of salt-

tolerant species indigenous to the native

plant communities existing on or near the

site or with other native species approved by

the Department. Sod composed of non-native

grasses is not authorized seaward of a major

structure or decks. Planting in other areas

of the project site shall not include

invasive nuisance plant species such as

listed in the Florida Exotic Pest Plant

Council's May 2003 List of Invasive Species

Category I and II.

20. On September 20, 2004, Mr. Hildreth filed with the

Department two sets of revised plans, as well as a copy of an

affidavit of publication of the Department's intent to issue the

CCCL permit.

The Property Description

21. The Property is located on North Captiva Island, an

unbridged barrier island, bounded on the west by the Gulf of

Mexico and on the east by Pine Island Sound. North Captiva

Island is bounded by Captiva Pass to the north of the Property

and Redfish Pass to the south, both of which are unstabilized,

dynamic inlets. The shorelines adjacent to and between these

unstabilized inlets experience higher rates of erosion and

accretion than would a normal shoreline not affected by such an

inlet. See generally PE 5 for a 2004, post-Hurricane Charley

aerial. 2 See also PE 7, updated April 2005, Department report

showing, in part, area between R-69 and R-70 as "critically

eroded" at 69 and 71.

22. The Property is approximately 75 feet wide (parallel

to the shoreline). The depth of the Property as of the July 9,

2004, Urban site plan, was approximately 276 feet on the north

and 262 feet on the south, with each boundary extending from the

eastern edge of the Property seaward to the MHWL. T 22. The

Property accreted approximately 20 feet since November, 2004,

and after Hurricane Charley. Stated otherwise, the MHWL moved

to the west approximately 20 feet. (According to Mr. Urban, as

of a week before the final hearing, the north line was 282 feet

and the south line was 274 feet. T 27.)

23. Elevations on the Property range from 1.2 feet at the

MHWL to 10.0 to 10.5 feet at the project footprint and at the

eastern boundary of the Gulf Drive easement, and 9.6 feet at

Gulf Drive. The following relevant elevations, from the Gulf of

Mexico to Gulf Drive, are portrayed on the site plan (FE 4):

approximate SHWL -- 3.8 feet; approximate vegetation line -- 6.0

feet; 8.0 feet beginning approximately 10 feet east of the

vegetation line and extending east, with one dip to 7.8 feet and

then rising to approximately 8.5 feet, then dipping to 7.9 feet

to the east and rising ultimately to 10.5 feet at the right-of-

way line and the eastern edge of the project. FE 4. See also

Findings of Fact 31, 34-36.

24. The lots immediately to the north and south of the

Property are vacant. (The Duboy lot, two lots north of the

Property, is the subject of Department CCCL permit LE-1024, but

no dwelling has been built.) Huff owns the two-story dwelling

to the east of the Property and Gulf Drive. This dwelling is

set back from the roadway easement on the east side of Gulf

Drive. PE 3. DeLoof owns the single-family dwelling southeast

(landward) of the Property and across Gulf Drive.

The Project as Preliminarily Approved

25. Flanagan proposes to construct a single-family

dwelling on the Property with the exterior dimensions of the

foundation measuring 60 feet in width (in the shore-parallel

direction) and between 11 and 16 feet deep (in the shore-normal

direction). The side yard setbacks are approximately 7.5 feet.

FE 4; JE 1-Final Order at 2. Given the road easement, the

project can not be located any farther eastward. The proposed

dwelling will be constructed on 15 pilings (12 inches in

diameter), see , e.g. , JE 1 at August 21, 2003, Survey and

Drawing and Certification, sheet G and August 23, 2004, Survey

Drawing and Certification, sheets C100-101 and A100, and must

comply with the Florida Building Code. See § 163.053(22), Fla.

Stat.; Fla. Admin. Code R. 16B-33.008(1).

26. The project includes a 900-gallon septic tank to serve

the proposed dwelling. Special permit condition 2.1 permits the

"onsite disposal system's septic tank and chamber pipes [to be]

located a maximum of 220 feet seaward of the" CCCL. As a result

the septic tank must be moved landward from the original

proposal. See , e.g. , FE 4. The dwelling's most seaward point

will be a maximum of 200 feet seaward of the CCCL. Construction

limits are located a maximum of 225 feet seaward of the CCCL.

JE 1-Final Order at 2.

27. There are no walkways associated with this project.

The Location of the Dune(s)

28. The expert testimony and exhibits were in conflict

regarding the location of the dune(s) on the Property.

29. The several site plans submitted by Flanagan do not

specifically designate the location of any dunes on the

Property. See , e.g. , JE 1; FE 3-4. These site plans indicate

the approximate location of the vegetation line, various

elevations, and contour lines. Id. See also Findings of Fact

22-23. Flanagan also provided a March 13, 2003, analysis of the

vegetation on the Property, see Finding of Fact 17. FE 6.

30. The Department's Field Engineer prepared a site

inspection report dated June 6, 2004, which stated that "[t]he

dune system here is well established with a primary and

secondary dune." Vegetation cover and comments are also

indicated, including a notation that the coastal scrub area is

approximately 75 feet wide with a series of dunes. However, the

report does not identify the location of a frontal dune. The

description of the vegetation appears consistent with the March

13, 2003, descriptions of the Property. See Findings of Fact

13, 17, 38, and 39. The same can be said regarding the Field

Engineer's description of "the building footprint" which is

described as "mostly mature seagrape, sabal palm, and woody

coastal species." Id. See also FE 6 and Mr. De Czege's

testimony T 32-37.

31. Mr. Tammisetti, whose testimony is in the record by

deposition, stated that he had never been on the Property. He

located the dunes on the Property based on the topographic

elevations depicted on the Flanagan site plan, received by the

Department on July 12, 2004. PE 1 at 22-23; FE 4. After

consulting the statutory definitions of "frontal dune" and the

rule definition of "primary dune," Mr. Tammisetti located the

"frontal dune" and the "primary dune" at contour/elevation 8 on

FE 4, i.e. , they are in the same location. He also noted a

small dune at contour 9, slightly landward. He always considers

impacts to the frontal dune, regardless of where it may be

located in reference to the beach. In like manner, if there is

no primary dune and only a fontal dune, he would consider

impacts to that dune. Mr. Tammisetti also described the

frontal/primary dune as "immediately landward of the vegetation

line." PE 1 at 23-26, 50, 53-58.

32. Mr. McNeal is familiar with North Captiva Island and

has processed applications for this area. T 53. However, he

has not been on the island "in quite a while," "[a]t least since

the '90s." T 83.

33. In making his determinations in this case, Mr. McNeal

relied on the information in the Department's file, including

the Urban surveys (FE 3-4), vegetation report, and other

information regarding vegetation on the Property. See , e.g. ,

T 200-201.

34. Based on that information, Mr. McNeal provided the

approximate location for three separate dune areas on the

Property: 1) he located a frontal dune (spanning the entire

width of the Property) between elevation 5.0 feet and the

seaward one-third of the elevation contour 8.0 (a semi-circle

extending approximately two-thirds laterally across the southern

portion of the Property); 2) he located a secondary dune

(spanning the entire width of the Property) landward of the

frontal dune (he identified) and after a "little trough," at

approximately the 8.5 feet elevation and encompassing a smaller

semi-circle elevation at 9.0 feet; and 3) he located a primary

dune landward of the secondary dune and another "little trough,"

at the proposed dwelling footprint and road easement, between

elevations 10.0 and 9.5 feet, where the "vegetation coverage

gets to be more established and more dense." T 63-66, 87;

FE 3-4.

35. On the other hand, Ms. Erickson visited the Property

several times and since the hurricane season of the fall of 2004

(last time late in January 2005), and stated that there was no

continuous, vegetated dune that provides protective value in the

areas referenced as the frontal dune by Mssrs. Tammisetti and

McNeal. Ms. Erickson stated that historically there had been a

frontal dune in this area, but that it began to erode away some

time after 2001, and it no longer exists. T 121-122.

36. Ms. Erickson described the area where Mssrs.

Tammisetti and McNeal located the frontal dune as having "small

mounds" of elevation that are not "continuous along the

shoreline," for adjoining property. She also described the

vegetation in this area as "not continuous" and "very sparse,"

although she stated "there are some sea oats in the area." Ms.

Erickson located the "primary (frontal) dune" as the rear (east)

approximately 30 to 40 feet of the Property, which overlaps with

the proposed footprint of the dwelling, and is in the

approximate location where Mr. McNeal located the primary dune.

T 115, 121-125; FE 3-4; PE 8. Stated otherwise, for Ms.

Erickson, the primary/frontal dune is located between the two

yellow lines on Flanagan Exhibit 4. T 124-125.

37. This is a difficult issue to resolve. Mr. Tammisetti

and Mr. McNeal are well-versed in identifying dunes and with

permitting structures seaward of the CCCL. However, their

opinions are given less weight in this case regarding the

location of the dunes, in part, because neither personally

observed the Property. The vegetation analysis performed by Mr.

de Czege in March 2003, is helpful to some extent, but not

definitive, although he testified that the vegetation described

as "coastal herbaceous dune" is consistent with what would be

found on a frontal dune. T 34-36. See Finding of Fact 17.

(Mr. de Craze was last on the Property in and around May 2004.

T 37.)

38. The site plans submitted by Flanagan are likewise

helpful to some extent, but are also not definitive. The

Department's site inspection report, see Finding of Fact 13, is

helpful to some extent. The inspection report suggested that

the septic system would need to be placed on the seaward side of

the proposed dwelling and necessarily "within the coastal scrub

and dune area." However, although it is stated that the dune

system is well established with a primary and secondary dune and

coastal scrub area approximately 75 feet wide with a series of

dunes, the location of a frontal dune is not discussed. Id.

39. The weight of the evidence indicates that there is an

elevated dune area with vegetative cover the width of the

Property and somewhat seaward of the proposed footprint of the

dwelling (between elevation 8.0 feet and 10.0 feet), which has

protective characteristics, and will most likely be left

undisturbed. But see PE 12, showing a 15-foot construction

access and staging area without consideration of the designated

septic tank area. However, the weight of the evidence also

indicates that this primary and frontal dune area also includes

the more landward location between the yellow lines between

elevation 10.0 and 10.5 feet. The project is proposed to be

constructed in the middle of this primary and frontal dune. FE

4.

40. The weight of the evidence indicates that at least

some native vegetation and in situ sandy soils will be removed

during the construction of the project. If the project is

constructed in accordance with the "plans" submitted to the

Department on September 20, 2004, (JE 1), as interpreted by Ms.

Erickson, see , e.g. , Findings of Fact 60-61, construction of the

project will result in the removal or destruction of native

vegetation and in situ soils from the primary and frontal dune

area such that it more likely than not will destabilize the

primary and frontal dune identified by Ms. Erickson and

potentially create a significant adverse impact on the beach and

dune system or adjacent properties, notwithstanding Special

Conditions 2.2 and 2. [sic] (the last full paragraph on page 2

of the Final Order which should be paragraph 3.) and the General

Permit Conditions in Florida Administrative Code Rule 62B-

33.0155(1)(g)-(k). See Finding of Fact 19. JE 1. 3

30-Year Erosion Projection

41. The Property is located between approximately 180 feet

and 225 feet south of Department Range Marker R-69. R-70 is

south of the Property. PE 6.

42. As noted above, the area is subject to significant

fluctuations in beach width. See Findings of Fact 21-22. See

also JE 1, Emmett Foster April 28, 1992, Memorandum.

43. Depending on the stability of the shoreline in

question over a significant period of time, Florida

Administrative Code Rule 62B-33.024(2) allows several methods to

determine the location of the 30-year erosion projection. T 56-

57.

44. The 30-year erosion projection "is the projection of

long-term shoreline recession occurring over a period of 30

years based on shoreline change information obtained from

historical measurements." Fla. Admin. Code R. 62B-33.002(57)

and 62B-33.024(1). The 30-year erosion projection is determined

using one or more procedures set forth in Florida Administrative

Code Rule 62B-33.024(2)(a)-(c).

45. Relevant here, "[s]ome shoreline areas, such as those

adjacent to or in the vicinity of inlets without jetty

structures, can experience large-scale beach-width fluctuations

with or without net erosion losses. Other beach areas can

fluctuate greatly due to the observed longshore movement of

large masses of sand, sometimes referred to as sand waves. In

these areas, a 30-year erosion projection shall be estimated

from the available data at the SHWL landward limit of the large

beach-width fluctuations within the last 100 years, plus the

application of a net erosion rate, as described in paragraph

62B-33.042(2)(a), F.A.C., if such can be determined from the

available data ." Fla. Admin. Code R. 62B-33.024(2)(c)(emphasis

added). This is the appropriate rule paragraph to determine the

30-year erosion projection in this case. T 57, 130.

46. The Department has consistently used the most landward

shoreline (MHWL and SHWL) of record (the 1982 Department survey)

as the 30-year erosion projection between R-69 and R-70 on North

Captiva due to the dramatic swings between periods of erosion

and accretion. The Department did not calculate a net erosion

rate for the Flanagan project.

47. During the summer of 2004 and in light of the Flanagan

application, Department staff requested Mr. Foster to review the

erosion situation between R-69 and R-70 for the purpose of

reviewing the 30-year erosion projection. Mr. Foster's

recommendation remained the same as it was stated in his

April 28, 1992, memorandum, "with updated mhw data table and

copies of profile plots." See Finding of Fact 14. (Mr. Foster

used Rule 62B-33.024(2)(c) to calculate the 30-year erosion

projection, but did not calculate an additional net erosion rate

on top of his 30-year erosion projection which stopped at the

1982 SHWL, see Finding of Fact 14. T 171.)

48. During the final hearing, Mr. McNeal, utilizing Mr.

Foster's updated data, located the SHWL (blue hatch line) as of

1982 on an aerial which depicts the May 30, 1991, CCCL. The

depicted SHWL is the 30-year erosion line according to Mr.

McNeal. T 171, 192-193; JE 3. The proposed project is landward

of this 30-year erosion projection.

49. The location of the 30-year erosion line was chosen

because, according to the Department, it is the method most

compatible with large-scale beach fluctuations and unpredictable

shoreline trends. T 57.

50. The Department's analysis was predicated on the

assumption, based mainly on Mr. Foster's analysis, that a net

erosion rate should not be determined for the Property.

51. On the other hand, Ms. Erickson calculated a net

erosion rate of -4.3 feet per year from data between 1951 and

2004-2005, although Department data exists back to 1859. 4 T 130-

135, 155-165, 168-177, 187-188; PE 10. Ms. Erickson multiplied

-4.3 by 30 years and added the most landward SHWL over the last

100 years which yielded a 30-year erosion projection which is

landward of the proposed project. PE 11, purple line.

52. Mr. McNeal disagreed with Ms. Erickson's location of

the 30-year erosion line in this case, preferring to rely on Mr.

Foster's analysis. T 196-197. He believed that "it may be an

issue of judgment on data to be used in this case, not

necessarily [the] rule itself, but the data that was used."

T 196. Again, Mr. McNeal testified that the Department has

consistently used Mr. Foster's methodology when it reviewed

other permits along this shoreline, and, in particular, with

respect to the Department's consideration of the Duboy property

located two lots to the north of the Property. T 197-198.

53. Flanagan, through Mr. McNeal and Mr. Foster's

analysis, presented a prima facie case regarding the location of

the 30-year erosion projection, which was adequately rebutted by

Petitioners. It was then incumbent on Flanagan, as the

applicant, to ultimately prove the reasonableness of locating

the 30-year erosion projection as indicated by Mr. McNeal, which

he did not do. Mr. McNeal did not state that Ms. Erickson's

analysis of data (which did not include data back to 1859, see

JE 1, Foster April 28, 1992, Memorandum and attached data and

Endnote 4) was flawed or otherwise inconsistent with Rule 62B-

33.024(2)(a)-(c).

54. It is concluded that the 30-year erosion projection is

as depicted on Petitioners' Exhibits 10 and 11. Therefore, the

proposed project is seaward of the 30-year erosion projection.

Continuous and Uniform Line of Construction

55. Florida Administrative Code Rule 62B-33.005(9)

provides that "[i]f in the immediate area a number of existing

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), F.S., and this rule 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 subsection 62B-33.005(3), (4), (7),

(8), or (10), F.A.C."

56. Mr. McNeal located the established line of

construction seaward of the proposed project by considering

aerial photographs, the Department's database for permit

history, and the Flanagan application. See FE 2, red line for

Mr. McNeal's location of the continuous line of construction.

Mr. McNeal was able to identify structures north and south of

the Property, which appeared to be seaward of the proposed

structure. (The Gabbert house, which is south of the Property,

was considered. FE 2, number 3. The Department also

considered, in part, its approval of CCCL permit LE-1024 for the

Duboy lot (number 2 on FE 2, T 61-63, 198-200), two lots north

of the Property.) There is no structure on the Duboy lot.

57. The weight of the evidence indicates that the Gabbert

house has not been "unduly affected by erosion" and that the

line of continuous construction determined by Mr. McNeal was

reasonable.

Removal or Disturbance of Native Vegetation and In Situ Sandy

Soils

58. Florida Administrative Code Rule 62B-33.005(4)(a)-(c)

provides:

(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, F.S., and this rule chapter are

met, including the following:

(a) The construction will not result

in removal or destruction of native

vegetation which will 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 construction will minimize the

potential for wind and waterborne missiles

during a storm;

(f) The activity will not interfere

with public access, as defined in Section

161.021, F.S.; and

(g) The construction will not cause a

significant adverse impact to marine

turtles, immediately adjacent properties, or

the coastal system.

See Fla. Admin. Code R. 62B-33.002(31)(a)-(d) for definitions

of "impacts," "significant adverse impacts," "minor impacts,"

and "other impacts."

59. Mr. Hildreth stated that the only proposed excavation 5

"per se would be the installation of the septic tank and drain

field, and any type of tie beams you might have between the

pilings for bracing." See also PE 1 at 30. He stated that

primarily seagrapes and cabbage palms are located on the

dwelling footprint and that these would be placed "over to the

side." He also opined that approximately one truck load of dirt

would be excavated and spread around the site, including on top

of the septic tank and drain field, which will be located

"immediately west of the house" and no more than 220 feet

seaward of the CCCL. This would result in a change in elevation

around the drain field of approximately six inches to a foot.

Fifteen, 12-inch pilings are proposed. T 43-45; JE 1, Final

Order at 2.

60. Conversely, Ms. Erickson testified that construction

of the dwelling foundation alone would require the excavation of

approximately 430 to 600 cubic yards of material from the

frontal and primary dune (located by Ms. Erickson, (PE 8 and

12)). T 137-149; see also JE 1, August 23, 2004, site plan

and other sheets filed with the Department and Finding of

Fact 25. (The Department does not review construction plans for

a proposed dwelling. According to Mr. Tammisetti, the

Department examines the "siting of the structures." PE 1 at 29,

38, 42. See also T 202.)

61. Ms. Erickson also stated that significant excavation

of dunes causes instability of the dune system by loosening

sediments, destroying vegetation, and creating flow pathways

that exacerbate wind and wave erosion. Ms. Erickson expects

significant adverse impacts to the frontal dune as a result of

proposed excavation on the Property. Id.

62. Mr. McNeal acknowledged that excavation and vegetation

removal causes instability of the dune system, but opined that

the applicant had minimized the removal or disturbance of in

situ sandy soils; that the disturbance of in situ sandy soils

will not result in net excavation; that the project will not

result in the destruction or removal of native vegetation to

such a degree that the frontal dune will lose any protective

value, destabilize the frontal dune or increase erosion by

either wind or water; that the proposed construction 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 have a

significant adverse impact to the beach and dune system; and

that the Department's Final Order does not allow removed or

disturbed in situ sandy soils to be placed landward of the CCCL.

T 66-82, 202. Mr. McNeal's opinions are predicated, in part, on

his belief that the frontal dune is located seaward of the

proposed dwelling and that excavation on-site will be minimal

and temporary. Id. See also PE 1 at 30-31, 36-37, 44, 53.

63. The weight of the evidence indicates that

notwithstanding the permit conditions, the excavation of in situ

sandy soils and native vegetation from the frontal/primary dune

is more likely than not to result in significant adverse impacts

to the beach and dune system. 6

Local Approval

64. There is no evidence that Lee County has rescinded the

prior approval letter or that the project has undergone any

major modifications that would require the Department to request

further approval from Lee County.

CONCLUSIONS OF LAW

65. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursuant to Sections 120.569

and 120.57(1), Florida Statutes.

66. The Department is the agency responsible for

regulating construction seaward of the CCCL pursuant to Part I

of Chapter 161, Florida Statutes, and Florida Administrative

Code Rule Chapter 62B-33.

67. Petitioners have standing to challenge the

Department's preliminary decision to issue the CCCL permit to

Flanagan.

68. Flanagan has the burden to prove by a preponderance of

the evidence that his permit application should be granted. See

Department of Transportation v. J.W.C. Company, Inc. , 396 So. 2d

778, 787-89 (Fla. 1st DCA 1981).

69. This is a de novo proceeding designed to formulate

final agency action rather than to review the Department's

decision to issue the CCCL permit, and that preliminary agency

action is not entitled to a presumption of correctness. Id.

See also Capeletti Brothers, Inc. v. Department of General

Services , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)(proceedings

under Section 120.57(1), Florida Statutes, "are designed to give

affected parties an opportunity to change the agency's mind").

70. The Department is authorized to issue permits for

construction seaward of the CCCL if the permit is "clearly

justified" based upon the consideration of facts and

circumstances including the potential impacts of the proposed

construction on the beach-dune system. See § 161.053(5)(a)3.,

Fla. Stat.

71. The rules adopted by the Department to implement

Section 161.053, Florida Statutes, require the applicant to

provide the Department "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." Fla. Admin. Code

R. 62B-33.005(2).

72. The application for a CCCL permit is required to

include, among other things written evidence, provided by the

appropriate local governmental agency having jurisdiction over

the activity, that the proposed activity, as submitted to the

Department, does not contravene local setback requirements or

zoning codes and is consistent with the state-approved Local

Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(3)(d). That

rule has been satisfied.

73. Florida Administrative Code 62B-33.005 sets forth the

"general criteria" that must be satisfied by the permit

applicant. The rule includes the following relevant criteria:

(3) After reviewing all information

required pursuant to this rule 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. In

assessing the 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 similar activities already permitted

or for which a permit application is pending

within the same fixed coastal cell. The

impact assessment shall include the

anticipated effects of the construction on

the coastal system and marine turtles. Each

application shall be evaluated on its own

merits in making a permit decision;

therefore, a decision by the Department to

grant a permit shall not constitute a

commitment to permit additional similar

construction within the same fixed coastal

cell.

(b) Require siting and design criteria that

minimize adverse and other impacts and

provide mitigation of adverse 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, F.S., and

this rule chapter are met, including the

following:

(a) The construction will not result in

removal or destruction of native vegetation

which will 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 construction will minimize the

potential for wind and waterborne missiles

during a storm;

(f) The activity will not interfere with

public access, as defined in Section

161.021, F.S.; and

(g) The construction will not cause a

significant adverse impact to marine

turtles, immediately adjacent properties, or

the coastal system.

* * *

(6) 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.

* * *

(8) Major structures shall be located a

sufficient distance landward of the beach

and frontal dune 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.....

(9) 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,...the Department shall issue a

permit for the construction of a similar

structure up to that line, unless such

construction would be inconsistent with

subsection 62B-33.005(3), (4), (7), (8), or

(10), F.A.C.

* * *

(11) In considering project impacts to

native salt-tolerant vegetation, the

Department shall evaluate the type and

extent of native salt-tolerant vegetation,

the degree and extent of disturbance by

invasive nuisance species and mechanical and

other activities, the protective value to

adjacent structures and natural plant

communities, the protective value to the

beach and dune system, and the impacts to

marine turtle nesting and hatchlings. The

Department shall limit disturbances to

natural and intact salt-tolerant plant

communities, including beach and dune,

coastal strand, and maritime hammock

communities that significantly interact with

the coastal system. Construction shall be

located, where possible, in previously

disturbed areas or areas with non-native

vegetation in lieu of areas of native plant

communities when the placement does not

increase adverse impact to the beach and

dune system..... Special conditions relative

to the nature, timing, and sequence of

construction and the remediation of

construction impacts shall be placed on

permitted activities when necessary to

protect native salt-tolerant vegetation and

native plant communities.....

* * *

Fla. Admin. Code R. 62B-33.005.

74. For purposes of the rules quoted above, the phrase

"significant adverse impact" is defined as an impact to the

coastal system that measurably interferes with the system's

functioning and is of such a magnitude that it may:

1. Alter the coastal system by:

a. Measurably affecting the existing

shoreline change rate;

b. Significantly interfering with its

ability to recover from a coastal storm;

c. Disturbing topography or vegetation such

that the dune system becomes unstable or

suffers catastrophic failure or the

protective value of the dune system is

significantly lowered; or

2. Cause a take, as defined in Section

370.12, F.S., unless the take is incidental

pursuant to Section 370.12(2)(f), F.S.

Fla. Admin. Code R. 62B-33.002(31)(b).

75. Neither the Department's rules, nor the statutes

governing coastal construction expressly prohibit construction

on a frontal dune that is landward of the 30-year erosion line.

However, where, as here, the proposed dwelling structure is

located on the frontal dune and seaward of the 30-year erosion

line and the evidence establishes that the proposed construction

will result in a significant adverse impact to the beach-dune

system, the permit should be denied. See , e.g. , Fla. Admin.

Code R. 63B-33.002(3)(b). 7

76. If a conclusion could be reasonably reached that the

construction of the proposed single-family dwelling would cause,

for example, only minimal removal of in situ soils and native

vegetation from the frontal dune (limited to the pilings and

septic tank system) as Mr. Hildreth opined, which would be

consistent with the permit conditions, then the project could be

permitted, but for the location of the project on the frontal

dune and seaward of the 30-year erosion projection line.

However, although the August 23, 2004, plans are not

incorporated in the CCCL permit (T 201-202), Ms. Erickson's

persuasive interpretation of the August 23, 2004, site plan and

related sheet drawings, is reasonable and places a cloud on the

reasonableness of the applicant's representations regarding the

nature and extent of the on-site excavation necessary for the

construction of the dwelling. This is particularly relevant

because of the location of the frontal dune and the location of

the proposed dwelling.

77. The preponderance of the evidence establishes that the

Flanagan project does not satisfy the relevant criteria in

Florida Administrative Code Rule 62B-33.005. Stated otherwise,

Flanagan did not prove that the construction permit is "clearly

justified." See Fla. Admin. Code R. 62B-33.005(4). Therefore,

the Flanagan CCCL permit application should be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order denying the CCCL permit.

DONE AND ENTERED this 1st day of September, 2005, in

Tallahassee, Leon County, Florida.

S

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of September, 2005.

ENDNOTES

1 / JE 1 is the Department's file regarding the Flanagan permit

application. The documents are not numbered or otherwise

ordered. The file also contains objections and comments from

the public regarding the permit application, which constitute

approximately half of the file. There are several black and

white aerials and photographs in the file, including an aerial

depicting the location of the Duboy and Flanagan lots, which are

not dated and were not identified during the final hearing. But

see PE 1 at 9 regarding an "eight-inch sheet."

2 / Generally, dunes in the southwest portion of Florida,

including North Captiva Island, are moderate in size, i.e. ,

between one and two feet above the surrounding ground levels.

3 / Mr. McNeal stated that the Department CCCL permit "does not

authorize any excavation foundation. If excavation was

proposed, it should have been shown in the application and it

should have been approved. . . ." Any additional excavation

would have to be reviewed before the issuance of a notice to

proceed. T 202. See also Endnote 5.

4 / The "Historical Shoreline Data for Lee County," attached to

Mr. Foster's April 28, 1992, Memorandum, references two separate

data points for 1859 and 1939-1943 for areas between R-69 and R-

70, with the remainder of the data points on and after 1951 for

this area, but no specific data between 1989 and 2001, although

Mr. Foster stated, in part, that "since 1988-9 there has been

accretion to the south which has spread northward into this area.

. . . The resulting condition is one of highly fluctuating beach

widths: on the order of 100 to 200 ft [sic] changes over short

(months) or long (years) periods of time would be possible and

expected." JE 1. During cross-examination, Ms. Erickson

explained that using data back to 1941 would not yield any

significant difference regarding a net erosion rate. T 175-177.

5/ Mr. McNeal stated that "the project does not authorize any

significant excavation on the site, which is one of the primary

sources of dunes [de]stabilization." T 67-71, 76-78.

6 / The same can be said for potential impacts which may be

caused by, for example, an increase in structure-induced scour.

Fla. Admin. Code R. 62B-33.005(4)(d). There are no proven

impacts to marine turtles.

7 / Section 163.053(6)(a)1., (b), and (c), Florida Statutes,

provides:

(6)(a) As used in this subsection:

1. "Frontal dune" means the first natural

or manmade mound or bluff of sand which is

located landward of the beach and which has

sufficient vegetation, height, continuity,

and configuration to offer protective value.

. . .

(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, other than a coastal or shore

protection structure, minor structure, or

pier, meeting the requirements of this part,

or other than intake and discharge

structures for a facility sited pursuant to

part II of chapter 403, 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-

water line within 30 years after the date of

application for such permit. The procedures

for determining such erosion shall be

established by rule. In determining the

area which will be seaward of the seasonal

high-water line in 30 years, the department

shall not include any areas landward of a

coastal construction control line.

(c) Where the application of paragraph (b)

would preclude the construction of a

structure, the department may issue a permit

for a single-family dwelling for the parcel

so long as:

1. The parcel for which the single-family

dwelling is proposed was platted or

subdivided by metes and bounds before the

effective date of this section;

2. The owner of the parcel for which the

single-family dwelling is proposed does not

own another parcel immediately adjacent to

and landward of the parcel for which the

dwelling is proposed;

3. The proposed single-family dwelling is

located landward of the frontal dune

structure; and

4. The proposed single-family dwelling will

be as far landward on its parcel as is

practicable without being located seaward of

or on the frontal dune.

Flanagan did not prove that the proposed single-family dwelling

would be located landward of the frontal dune structure as

defined in subsection 161.053(6)(a)1., Florida Statutes.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Greg Munson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Colleen M. Castille, Secretary

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mark S. Miller, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Edwin A. Steinmeyer, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

Matthew D. Uhle, Esquire

Knott, Consoer, Ebelini, Hart & Swett, P.A.

1625 Hendry Street, Suite 301

Fort Myers, Florida 33901

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.