89-002741 Harbor Estates Associates, Inc. vs. E. Burke And Department Of Environmental Regulation Status: Closed Recommended Order on Wednesday, April 4, 1990.

Summary: Applicant failed to make prima facie showing regarding impact of proposed marina & resulting boat traffic on adjacent water & manatees.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HARBOR ESTATES ASSOCIATES, INC . )

)

Petitioner , )

)

vs. ) CASE NO. 89-2741

)

E. BURKE AND STATE OF FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

REGULATION , )

)

Respondents. )

________________________________)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its

duly designated Hearing Officer, Daniel Manry, held a formal hearing in the

above-styled case on January 30, 1990, in Stuart, Florida.

APPEARANCES

For Petitioner: Patricia V. Bartell

Qualified Representative

615 Southest St. Lucie Street

Stuart, Florida 34997

For Respondent J. A. Jurgens, Esquire

Edmund Burke: Jones, Foster, Johnson & Stubbs, P.A.

505 South Flagler Drive

West Palm Beach, Florida 33402

For Respondent, Patricia E. Comer, Attorney

Department of Department of Environmental Regulation

Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

This proceeding concerns an Intent to Issue a dredge and fill permit given

by the Department of Environmental Regulation ("DER") to Respondent, Edmund

Burke ("Burke"), for construction of a retaining wall and wooden pile-supported

bridge crossing a portion of the South Fork of the St. Lucie River in Martin

County, Florida. The ultimate issues for determination are whether Petitioner

has standing to challenge the proposed DER action, and if so, whether the

proposed agency action complies with the requirements of Sections 403.91 through

403.938, Florida Statutes, and applicable rules.

PRELIMINARY STATEMENT

The Intent to Issue given by DER to Respondent, Burke, was dated April 28,

1989. Petitioner filed a Petition for Formal Administrative Hearing on Intent

to Issue Permit on May 11, 1989 ("Petition"). The matter was transferred to the

Division of Administrative Hearings for assignment of a hearing officer on May

23, 1989. The matter was set for formal hearing on January 30, 1990, by Notice

of Hearing issued on October 31, 1989, and transferred to the undersigned on

January 29, 1990. The formal hearing was conducted on January 30, 1990.

Respondent, Burke, presented the testimony of two expert witnesses.

Charles Cangianelli, Consultant, Associated Marine Consultants, was accepted as

an expert in marine contracting and DER dredge and fill permitting. Michael

Goralski, Environmental Specialist, DER, was accepted as an expert in dredge and

fill permitting, wetland resources, and DER wetland jurisdiction. Respondent,

DER, also presented testimony by Mr. Goralski. Respondents introduced DER

Exhibits 1, 2a, 3-5, 6B and 7 which were admitted into evidence.

Petitioner presented the testimony of five witnesses. In addition to the

testimony of Mr. Cangianelli and Mr. Goralski, Petitioner presented the

testimony of: Commissioner Mary Dawson, Martin County Commissioner; Bob

Nicholas; and William Burr. Mr. Burr testified in his capacity as a

representative of the Martin County Audubon Society.

Petitioner presented 26 exhibits to be admitted in evidence. Petitioner's

Exhibits 1-19, 24 and 25 were admitted in evidence at the formal hearing.

Ruling was reserved on Petitioner's Exhibits 20, 22, and 26 for disposition in

this Recommended Order. Petitioner's Exhibit 21 was not admitted into evidence.

Petitioner's Exhibit 23 was withdrawn. Petitioner was instructed to file a

motion for leave to file a late-filed exhibit which was not identified by

Petitioner at the formal hearing. The motion was not timely filed. Ruling on

Respondent, Burke's, ore tenus Motion to Dismiss was reserved for disposition in

this Recommended Order.

Several post-hearing documents were filed by the parties. Petitioner filed

its Response to Request, concerning its unidentified late filed exhibit, on

February 1, 1990. Respondent, Burke, filed a Motion to Strike Response to

Request on February 6, 1990. Respondent, DER, filed its Motion to Strike

Petitioner's Exhibit 26 concerning a proposed Martin County Comprehensive Plan

on February 2, 1990. Respondent, Burke, filed its Motion for Attorneys Fees and

Costs on February 22, 1990. The post-hearing documents filed by the parties are

disposed of in this Recommended Order.

The transcript of the hearing was filed on February 13, 1990. Proposed

findings of facts and conclusions of law were timely filed by Petitioner on

February 21, 1990. On the same date, Petitioner filed its Closing Statement,

Proposed Recommended Order, Memorandum of Law Admissible Evidence, Memorandum of

Law concerning Respondent, Burke's, Motion to Strike, Memorandum of Law

regarding standing, and its Memorandum on Board of Trustees of the Internal

Improvement Trust Fund of the State of FL v. Barnett (13 FLW 2590)(sic).

Separate Proposed Recommended Orders were filed by Respondent, Burke, on

February 22, 1990, and by Respondent, DER, on February 21, 1990. The parties'

proposed findings of facts are addressed in the Appendix to this Recommended

Order.

FINDINGS OF FACT

1. Respondent, Edmund Burke, on January 15, 1988, filed with the

Department of Environmental Regulation ("DER") application number 431441608 for

a permit to construct a permanent, pile supported, wooden bridge approximately

80 feet long and 10 feet wide connecting the mainland with an island in the

South Fork of the St. Lucie River in Martin County, Florida. The bridge was to

span a 50 foot canal or creek ("channel") in the River. One of two retaining

walls was to be located on the mainland peninsula. The other retaining wall was

to be located on the island (the "initial project").

2. Between January 15, 1988, and April 28, 1989, the initial project was

modified by Respondent, Burke, to satisfy DER concerns over potential impacts,

including secondary impacts, relevant to the application. The width of the

bridge was reduced from 10 feet to 6 feet. The retaining wall initially planned

at the point where the bridge intersects the island was eliminated. The

retaining wall on the mainland side of the bridge was relocated above mean high

water. Sixty feet of the proposed bridge runs from mean high water to mean high

water. An additional 10 feet on each end of the bridge is located above mean

high water. The project remained a permanent, pile supported, wooden bridge

(the "modified project").

3. The Intent to Issue, dated April 28, 1989, indicated that the

modifications required by DER had been made, that the modifications satisfied

DER concerns relevant to the initial project, and that DER intended to issue a

permit for construction of the modified project. The elimination of the

retaining wall obviated any necessity for backfill on the island. The reduction

in the width of the bridge virtually eliminated the secondary impacts on the

surrounding habitat, resulted in less shading of the water, and precluded

vehicular traffic over the bridge.

4. The final modification that was "necessary in order for [DER] to

approve this application" was the reduction in the width of the bridge from 10

feet to 6 feet. Petitioner's Exhibit 17. DER's requirement for this final

modification was communicated to Mr. Cangianelli in a telephone conversation on

April 6, 1989 (Petitioner's Exhibit 18), and memorialized in a letter to

Respondent, Burke, on April 14, 1989 (Petitioner's Exhibit 17). The final

modification was made, and the Intent to Issue was written on April 28, 1989.

Petitioner's Case.

5. Property commonly known as Harbor Estates is adjacent to the site of

the modified project. A constructed harbor and contiguous park are located

within the boundaries of Harbor Estates. Both are used by residents of Harbor

Estates and both are proximate to the site of the modified project. The harbor

entrance and site of the modified project are located on opposite sides of a

peninsula approximately 40 feet wide and approximately 125 feet long.

6. Boats operated by residents of Harbor Estates that can navigate under

the modified project need only travel the length of the peninsula, a distance of

approximately 125 feet through the channel, in order to reach the harbor

entrance. Boats operated by residents of Harbor Estates that cannot navigate

under the proposed bridge must travel around the island, a distance of

approximately 1800 feet in the main body of the St. Lucie River, in order to

reach the harbor entrance. However, Petitioner presented no evidence that prior

to the construction of the bridge the channel was navigable by boats not capable

of passing under the bridge after the bridge was completed.

7. Petitioner, Harbor Estates Associates, Inc., submitted no evidence to

show facts necessary to sustain the pleadings in the Petition concerning the

inadequacy of modifications required by DER. Of Petitioner's 26 exhibits,

Exhibits 1-19, 24 and 25 were relevant to the initial project but were not

material to claims in the Petition concerning the inadequacy of the

modifications required by DER. Petitioner's Exhibit 20 was cumulative of DER's

Exhibit 6B. Petitioner's Exhibits 22 and 26, respectively, concern a 1980

bridge permit and a Proposed Comprehensive Growth Management Plan for Martin

County, Florida.

8. Petitioner offered no expert testimony in support of the pleadings in

the Petition including assertions that: the modified project will have a direct

adverse impact upon water quality and the welfare or property of others; the

channel is navigable by deep-draft motor vessels; the modified project will

result in shoaling that will have to be corrected at the expense of Harbor

Estates; the modified project will result in prohibited destruction of

mangroves; or that the modified project will cause any of the other specific

adverse effects described in the Petition.

9. The testimony of fact witnesses called by Petitioner was not material

to Petitioner's claims that modifications required by DER were inadequate. The

testimony of Bob Nicholas was relevant to allegations of prior violations but

was not dispositive of any issue concerning the adequacy of modifications

required by DER. The testimony of William Burr was admitted as rebuttal

testimony relevant to precedents in the general area of the modified project but

failed to address the adequacy of modifications required by DER.

10. Petitioner consistently demonstrated a lack of knowledge of the

applicable law, the proper scope of the formal hearing, and the distinction

between argument and evidence. Petitioner repeatedly attempted to establish

violations of laws not relevant to the proceeding including local laws and other

environmental laws. Petitioner attempted to establish issues by arguing with

witnesses during direct and cross examination, and by repeatedly making unsworn

ore tenus representations of fact.

11. There was a complete absence of a justiciable issue of either law or

fact in this proceeding because Petitioner failed to show facts necessary to

sustain the pleadings. Petitioner presented no evidence refuting Respondent,

Burke's, showing that the modifications required by DER were adequate to assure

water quality and the public health, safety, or welfare, or the property of

others. Evidence presented by Petitioner was not material to the issue of

whether the modifications required by DER were adequate for the purposes of the

law applicable to this proceeding. Therefore, Petitioner participated in this

proceeding for a frivolous purpose, primarily to cause unnecessary delay, or to

needlessly increase the cost of licensing or approval of the proposed activity.

Respondents' Case.

12. The island to be accessed by the modified project is approximately 2.5

acres in area and contains mostly wetland. The island is approximately 900 feet

long. The portion of the island that is beyond DER permit jurisdiction is less

than 200 feet long and less than 50 feet wide.

13. The site of the modified project is located in Class III waters.

Respondent, Burke, provided adequate assurances that portions of the modified

project not extending over open water will be constructed upon property owned by

him. The single retaining wall to be constructed at the southeastern terminus

of the modified project will be constructed landward of DER jurisdiction.

14. The modified project permits neither the installation of water or

electrical conduits to the island nor any excavation, filling, or construction

on the island. Respondent, Burke, must provide notification to DER before any

such activity is begun.

15. The bridge will accommodate no vehicular traffic larger or heavier than

a golf cart. Golf cart access is necessary in order to accommodate a physical

disability of Respondent, Burke.

16. The modified project employs adequate methods to control turbidity,

limit mangrove alteration on the island, and limit potential collisions with

manatees. Vegetation, including mangroves, will not be removed. Incidental,

selective trimming of vegetation will be allowed to create access to the island.

The single retaining wall to be constructed on the mainland will be located

landward of mangroves. Turbidity curtains will be used during construction to

minimize short term water quality impacts. The modified project requires

turbidity screens to be installed if there is any indication of sedimentation.

No mechanical equipment will be located on the island during construction. No

boats will be moored at the site of the modified project.

17. The modified project will cause no significant downstream shoaling or

silting. The site of the modified project is located approximately 15 feet from

an existing fishing platform. No significant shoaling has been associated with

that platform. The impacts associated with the modified project are similar to

the impacts associated with single family docks in the area. No significant

shoaling has been associated with such docks.

18. The modified project is not a navigational hazard. The elevation is

sufficient to accommodate small boats, canoes, and row boats. Reflective

devices are required to alert night boat traffic of its presence. There is

adequate clearance under the bridge to prevent obstruction.

19. DER reviewed all applicable rules and criteria in considering the

modified project. The modified project will have no adverse effect upon public

health, safety or welfare, or the property of others. The modified project will

not adversely impact the conservation of fish, wildlife, or their habitats. The

modified project will not adversely affect navigation, the flow of water, or

cause harmful erosion or shoaling. The modified project will not adversely

impact fishing value or marine productivity in the area. The modified project

will have no adverse impact upon recreational values in the vicinity.

20. The modified project was reviewed in a manner that is customary for

similar projects reviewed by DER. It is common practice for DER employees, as

they did in this case, to rely upon opinions of other DER professionals in

formulating an intent to issue. Other projects within DER jurisdiction in the

general geographic area of the modified project and within the same region were

considered in DER's review process. Other docks and marinas have been

constructed and are proposed for construction within the South Fork of the St.

Lucie River. Bridges including pedestrian bridges have been and are proposed to

be constructed in Martin County. DER did not require a hydrographic study

because the modified project was considered a minor project.

21. DER review took into account the intended future use of the island

property and DER's past experience with Respondent, Burke. As part of its

review, DER reviewed a conceptual bridge to a single family residence on the

island which would not require any fill or construction of retaining walls. In

addition, DER considered previous violations on the island under Florida

Administrative Code Rules 17-4.070, 17-4.160, and 17-4.530 in connection with an

earlier permit that expired before the initial project was begun.

22. Respondent, Burke, provided reasonable assurances that he is the owner

of the site of the proposed project. Respondent, Burke, signed DER's property

ownership affidavit and submitted a survey. DER's Intent to Issue does not

authorize any construction in any area within the jurisdiction of DER other than

the modified project.

23. The Intent to Issue constitutes compliance with state water quality

standards. DER has not received any requests for a jurisdictional determination

in the general geographic area of the modified project. No enforcement action

has been initiated by DER or at the request of a third party against Respondent,

Burke, for alleged violations of DER rules.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction over this

proceeding. The parties were duly noticed for the formal hearing.

25. Respondent, Burke's, ore tenus motion to dismiss for lack of standing,

which was made at the conclusion of the formal hearing, is denied. The issue of

Petitioner's standing was initially established in paragraphs one and five of

the Petition as an issue for determination in the formal hearing. However,

paragraphs 6(g) and (h) of the Order entered on October 27, 1989, in this

proceeding required the parties to file a prehearing statement containing a

concise statement of those issues of fact and law which remained to be

litigated. Neither the Prehearing Stipulation filed by Petitioner nor the Joint

Prehearing Stipulation filed by Respondents included in the issues of fact and

law to be determined at the formal hearing any factual or legal issues

concerning standing. Respondent, Burke, then attempted to resurrect the issue

of standing at the conclusion of the formal hearing. Respondent, Burke's,

assertion of lack of standing "comes too late." City of Destin v. Department of

Transportation, 541 So.2d 123, 127 (Fla. 1st DCA 1989); Yachting Arcade, Inc. v.

Riverwalk Condominium Assoc. Inc., 500 So.2d 202 (Fla. 1st DCA 1986).

26. The burden of proving entitlement to a permit is on Respondent, Burke.

J.W.C. Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

27. Respondent, Burke, has provided reasonable assurances that the

modified project will not violate water quality standards or criteria related to

Class III waters within the meaning of Section 403.918(1), Florida Statutes, and

Florida Administrative Code Rule 17-312.080(1). Turbidity controls will be

required during construction, and the narrow width of the bridge precludes

vehicular runoff.

28. Respondent, Burke, has provided reasonable assurances that the

modified project is not contrary to the public interest within the meaning of

Section 403.918(2), Florida Statutes, and Florida Administrative Code Rule 17-

312.080(2).

29. Petitioner's concerns related to other laws and local government

requirements are not relevant to this proceeding. DER's determination in this

proceeding does not insulate the applicant from jurisdictional and permitting

requirements of other state or local agencies. Grove Isle, Ltd. v. Bayshore

Homeowners' Association, Inc., 418 So.2d 1046, 1048 (Fla. 1st DCA 1982);

Peterson v. Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980).

30. DER's Motion to Strike Petitioner's Exhibit 26 concerning a proposed

Martin County Comprehensive Plan is granted. DER is neither required, nor

authorized, to obtain assurances that the modified project will comply with

county ordinances or local zoning. Board of Trustees of the Internal

Improvement Trust Fund v. Barnett, 533 So 2d 1202 (Fla. 3d DCA 1988); Council

for the Lower Keys v. Charley Toppino & Sons, Inc., 429 So 2d 67 (Fla. 3d DCA

1983).

31. Petitioner is not entitled to petition DER for a Jurisdictional

Declaratory Statement pursuant to Section 403.914, Florida Statutes, or Florida

Administrative Code Rule 17-312.040, solely on the grounds that Petitioner is an

adjacent property owner. Based on the evidence of record, DER is not required

to issue a Jurisdictional Declaratory Statement to Petitioner pursuant to

Section 403.914 or Florida Administrative Code Rule 17-312.040.

32. Failure to require a hydrographic study in this proceeding did not

violate DER rules. Florida Administrative Code Rule 17-312.060(5)(a) provides

that additional information including hydrographic study or hydrological

evaluation may be requested of an applicant pursuant to Section 403.0876,

Florida Statutes. The applicable rule, however, does not mandate such a study

or evaluation.

33. DER did not violate its rules by giving Petitioner an Intent to Issue

if Respondent, Burke, had previously violated the requirements in Florida

Administrative Code Rules 17-4.070, 17-4.160, and 17-4.530 in connection with an

earlier permit. Allegations of illegal activity are not relevant to a permitting

procedure. Board of Trustees of the Internal Improvement Trust Fund v. Barnett,

533 So 2d 1202 (Fla. 3d DCA 1988); Council for the Lower Keys v. Charley

Toppino & Sons, Inc., 429 So 2d 67 (Fla. 3d DCA 1983). Respondent, Burke's,

Motion to Strike is granted. Petitioner's Exhibit 22 is not admitted in

evidence.

34. DER has obtained adequate information and has proposed adequate

conditions to address possible secondary impacts associated with the modified

project. DER is not required to have actual applications submitted for all

possible activities to evaluate secondary and cumulative impacts. DER can issue

a permit for a portion of a total activity.

35. The undersigned has no jurisdiction to determine property rights

between private parties in this proceeding. Dwynal & Iona Pettingill v. State,

Department of Environmental

Regulation, No. 82-294, 4 FALR 1912-A, 1915-A (Final Order; September 6, 1982).

Petitioner's Exhibit 20, consisting of a map depicting Petitioner's alleged

easement, is not admitted in evidence.

36. Respondent, Burke's, Motion for Attorneys Fees is granted. Section

120.59(6), Florida Statues, provides in relevant part that a prevailing party

may recover reasonable attorneys fees from a nonprevailing adverse party who has

participated in any proceeding pursuant to Section 120.57(1) for an improper

purpose.

37. Subsection 120.59(6)(e) in relevant part defines both a "nonprevailing

adverse party" and an "improper purpose." Petitioner is a nonprevailing adverse

party because it failed to substantially change the outcome of the proposed or

final agency action which is the subject of this proceeding. Participation in a

proceeding is for an improper purpose if it is primarily either for a frivolous

purpose, to cause unnecessary delay, or to needlessly increase the cost of

licensing or securing the approval of an activity.

38. Participation in a proceeding is frivolous whenever a finding is made

that there is a complete absence of a justiciable issue of either law or fact.

Whitten v. Progressive Casualty Insurance, Co., 410 So.2d 501, 505 (Fla. 1982);

Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980). The Florida

Supreme Court stated in Whitten that the purpose of awarding attorney's fees is

to:

...discourage baseless claims, stonewall defenses

and sham appeals...by placing a price tag through

attorney's fees awards on losing parties who engage

in these activities. Such frivolous litigation

constitutes a reckless waste of judicial resources

as well as the time and money of prevailing litigants.

39. In determining whether a claim is baseless, courts look to the

evidence presented by the nonprevailing adverse party and that party's conduct

during the proceeding. When the nonprevailing adverse party fails to call

witnesses in that party's own behalf, nominally attempts to create an issue by

cross-examining witnesses for the opposing party, or otherwise fails to show

facts needed to sustain the pleadings, courts have found the purpose to be

baseless and frivolous. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980);

Kisling v. Woolridge, 397 So.2d 747, 748 (Fla. 5th DCA 1981); White v. The

Montebello Corporation, 397 So.2d 326 (Fla. 5th DCA 1981).

40. When the foregoing standard is applied to this proceeding, it is

concluded that Petitioner participated in this proceeding for an improper

purpose within the meaning of Section 120.69(6). Petitioner participated in

this proceeding primarily for a frivolous purpose because there was a complete

absence of a justiciable issue of law or fact. Petitioner failed to show facts

necessary to sustain the pleadings in this proceeding. Although Petitioner

called witnesses in its own behalf, the testimony of those witnesses was not

material to Petitioner's pleadings concerning the alleged inadequacy of the

modifications

required by DER. Further, Petitioner participated in this proceeding primarily

to cause unnecessary delay and to increase the cost of securing approval of the

modified project.

41. In reaching this conclusion, the undersigned has considered the

evidence presented by Petitioner, Petitioner's conduct during the formal

hearing, and applicable findings of fact in this Recommended Order including:

a. the immateriality of evidence presented

by Petitioner relevant to the issues of law

and fact in this proceeding;

b. Petitioner's demonstrated unfamiliarity

with relevant law and the proper scope of this

proceeding;

c. Petitioner's repeated attempts to establish

violations of laws not relevant to this proceeding

including local laws and other environmental

laws;

d. Petitioner's demonstrated inability to

distinguish between evidence and argument;

e. Petitioner's failure to call material witnesses

in its own behalf;

f. Petitioner's repeated attempts to establish

issues either by unsworn representations of facts

or by arguing with witnesses during direct and cross

examination; and

g. Petitioner's failure to otherwise show facts

necessary to sustain the pleadings.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Regulation enter a Final

Order on the merits issuing the requested permit and awarding reasonable

attorney's fees and costs in accordance with this Recommended Order.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 4th day of

April, 1990.

___________________________________

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April, 1990.

APPENDIX

Petitioner has submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted. Although most of Petitioner's

proposed findings were cast in the form of "fact", they were in substance

argument and rejected accordingly.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 Included in part in Finding 1

Findings as to ownership

are rejected as

beyond the jurisdiction

of the undersigned. Finding

as to the late filed exhibit

is rejected as irrelevant.

2-4, 10-12, Rejected as either irrelevant

16, or not supported by the record.

5 and 6, 37, 40 Rejected as unsupported by

42 the record.

7, 8, 15 Rejected as irrelevant

17, 21-29 and immaterial

9, 13, 14, 18-20 Rejected as immaterial

30-33, 35 and 36

37(a), 38, 39, 41, 48

20(A) Rejected as irrelevant and

immaterial except the last

sentence is included in Finding 13

34 Included in Finding 12

46 Rejected as not supported by the

record, hypothetical and immaterial.

47 Rejected as not established by clear

and convincing evidence.

Respondent, Burke, has submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted.

Respondent. Burke's, Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

15 and 16 Included in Finding 1

17, 26, 27 Included in Finding 2

18, 48 Included in Findings 15 and 16

19, 30, 31, 42 Included in Finding 13

20, 21, 44 Included in Findings 4 and 14

22, 23, 25, 32 Included in Finding 17

24 Included in Finding 16

25, 36-38 Included in Finding 17

28 Included in Finding 18

29 Included in Finding 3

33 Included in Finding 10

34 Included in Finding 19

35, 39, 43 Included in Finding 20

40, 41 Included in Finding 11

45-47 and 49 Included in Finding 16

51 and 52 Included in Findings 6-8

54 Included in Finding 5 and 8

50 and 53 Rejected as irrelevant and

immaterial

Respondent, DER, has submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order

of Fact Number of Acceptance or Reason for Rejection

1 and 2 Included in Findings 1 and 2

3 Included in Finding 10

4 and 5 Included in Finding 16

6, 9 Included in Finding 2

7 and 8 Included in Findings 9 and 11

10 Included in Finding 13

11 Included in Finding 15

12 Included in Finding 17

13 and 14 Included in Finding 16

COPIES FURNISHED:

Dale H. Twachtmann, Secretary

Department of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson

General Counsel

Department of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Patricia E. Comer

Assistant General Counsel

Department of Environmental Regulation

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Patricia V. Bartell

Qualified Representative

615 S.W. St. Lucie Street

Stuart, FL 34997

J. A. Jurgens

Jones, Foster, Johnson & Stubbs, P.A.

505 South Flagler Drive

West Palm Beach, FL 33402