94-007073 Paul Leto, Richard Meyer, And Berta Anderes vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 31, 1996.

Summary: Petitioners failed to satisfy requirements for a permit for construction seaward of the coastal construction control line/deny application for permit

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL LETO, RICHARD MEYER, and )

BERTA ANDERES, )

)

Petitioners, )

)

vs. ) CASE NO. 94-7073

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

and )

)

BEACH DEFENSE FUND, INC., )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 7 -

8, 1995, at Hollywood, Florida, before Errol H. Powell, a duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: David B. Mankuta, Esquire

Atkinson, Diner, Stone & Mankuta, P.A.

Post Office Drawer 2088

Hollywood, Florida 33022-2088

For Respondent: Melease A. Jackson

Dana M. Wiehlel 1/

Assistant General Counsels

Division of Environmental Protection

2600 Blair Stone Road, Mail Station 35

Tallahassee, Florida 32399-2400

For Intervenor: Steve Welsch, President

Beach Defense Fund, Inc.

315 DeSoto Street

Hollywood, Florida 33019

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioners are eligible for a

permit, pursuant to Section 161.053, Florida Statutes, for construction seaward

of the Coastal Construction Control Line in Broward County, Florida.

PRELIMINARY STATEMENT

In November 1993, Paul Leto, Richard Meyer, and Berta Anderes (Petitioners)

filed an application, through its representative, for a permit from the

Department of Environmental Protection (Respondent). The application requested

a Coastal Construction Control Line permit, pursuant to Chapter 161, Florida

Statutes, for construction of a single-family residence, riprap structure, and

associated minor structures in Broward County, Florida.

On July 13, 1994, Respondent filed a final order denying the permit. By

certified letter dated July 14, 1994, Respondent notified Petitioners of the

denial, and included a copy of the final order. Petitioners filed a petition

for formal hearing. On December 19, 1994, this matter was referred to the

Division of Administrative Hearings.

At hearing, Petitioners presented the testimony of three witnesses and

entered ten exhibits into evidence. Respondent presented the testimony of five

witnesses and entered 14 exhibits into evidence. Intervenor presented the

testimony of one witness and entered four exhibits into evidence and proffered

one exhibit.

A transcript of the formal hearing was ordered. At the request of the

parties, the time for filing post-hearing submissions was set for January 5,

1996. An extension of time was granted until January 8, 1996, to file post-

hearing submissions. The parties filed proposed findings of fact which are

addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. On November 30, 1993, Vander Ploeg and Associates, Inc., on behalf of

Paul Leto, Richard Meyer, and Berta Anderes (Petitioners) submitted an

application to the Florida Department of Environmental Protection (Respondent)

for a permit to perform construction on their property seaward of the Broward

County Coastal Construction Control Line. Respondent deemed their application

complete on April 18, 1994.

2. Petitioners proposed construction will be seaward of the Coastal

Construction Control Line.

3. The proposed construction will occur on two adjacent lots in Broward

County. Petitioner Leto is the owner of one of the lots described as Lot 19,

Block 196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of

Broward County. Petitioners Meyer and Anderes are the owners of the other lot

described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20,

Public Records of Broward County. Petitioner Leto purchased his lot in

September 1992 and Petitioners Meyer and Anderes purchased their lot in March

1993.

4. The lots were platted in or around the 1920's.

5. Both lots are seaward of the seasonal high water line, on a sandy beach

with no frontal dune structure. They are bordered by the Atlantic Ocean on the

eastern most side and by a roadway (Surf Road) which is immediately adjacent to

the lots on the western most side and landward of the lots. Approximately 200

feet north of the lots is an existing structure and approximately 800 feet south

of this first existing structure is another existing structure.

6. Petitioners topographical survey, which was submitted to Respondent in

December 1993, showed that Lots 19 and 20, each measured 40 feet in a shore

parallel direction and 80 feet in a shore normal direction, i.e., perpendicular

to the shoreline.

7. The proposed structure will be located directly on the sandy beach.

8. The City of Hollywood, Florida has granted Petitioners a variance.

Further, the proposed construction complies with the rules, zoning regulations,

and ordinances of the City of Hollywood.

9. Petitioners' application requests a permit for the construction of a

single-family residence on the lots, which will house two families. However,

the proposed construction is for a duplex, not a single-family residence.

10. Petitioners are willing, and agreeable, to changing the design of the

proposed structure to comply with Respondent's specifications for a single-

family residence.

11. Additionally, the proposed construction includes a riprap which will

also be located on the sandy beach. A riprap is typically used for protective

armoring. No structure presently exists for the riprap to protect.

Furthermore, the riprap proposed by Petitioners is not adequately designed as a

coastal protection structure, and if the proposed single-family residence is

modified in accordance with Respondent's specifications, the proposed modified

single-family residence would not be eligible for coastal armoring.

12. The riprap structure is not an integral part of the structural design.

Petitioners are willing, and agreeable, to eliminating the riprap structure.

13. No other issues exist as to the structural integrity of the design of

the proposed project.

14. The lots on which the proposed structure will be located are a part of

the beach-dune system. The natural function of the beach provides protection to

upland property.

15. The lots on which the proposed structure will be located are subject

to normal storm-induced erosion.

16. Tide and wave forces will impact the proposed structure during storms

of minor intensity, including five-year storms.

17. The proposed structure will induce greater erosion on the lots as a

result of scour due to the interaction of the storm waves and currents with the

proposed structure.

18. During the storm, the normal storm-induced erosion combined with the

scour erosion will form a breach or depression in the subject property. In

turn, the upland property will be exposed to greater tide and wave forces,

increasing the risk of erosion and damage to the upland property.

19. The subject lots and surrounding properties have been subjected to

unnatural forces which have added to the erosion. The Port Everglades inlet has

inhibited the natural downdrift of sand. The City of Hollywood's beach

maintenance division has been regularly pushing sand seaward and in the process,

breaking down natural forming cliffs. Even though these unnatural forces are

capable of being eliminated, the normal storm-induced erosion and the scour

erosion would still exists.

20. The existing developed structures to the north and south of the

subject lots appear to create a reasonably uniform line of construction.

However, the developed structures have been unduly affected by erosion. The

proposed structure will be located within this line of construction.

21. During a major storm along the shoreline, waves remove sand from the

beach and dune area and deposit the sand in an offshore bar.

22. After the major storm, a recovery of the beach and dunes takes place.

Normal wave activity carries the sand from the offshore bar back to the beach,

and the sand is then carried landward by winds and is caught and trapped by dune

vegetation; thereby reforming a dune.

23. Constructing the structure as proposed will not locate the structure a

sufficient distance landward of the beach-dune system. As a result, the

proposed structure will interrupt natural fluctuation in the shoreline and not

preserve the natural recovery following the storm-induced erosion.

24. The cumulative impact on the beach-dune system by the proposed

structure would be severe, i.e., the effects on the beach-dune system by

repeating this same proposed structure along the subject shoreline would be

severe. There would be structure-induced scour and general degradation of the

beach-dune system. Additionally, the recovery potential of the subject area

following a major storm event would be threatened.

25. Over the years, the beach of the subject property has been subjected

to a re-nourishment project consisting of pumping sand from offshore. This

method of re-nourishment may have negatively impacted the sand bar system

immediately offshore affecting the hindrance of erosion. A sand bar system

immediately offshore softens wave action on the shore and aids in inhibiting

erosion.

26. The proposed structure will hinder lateral public beach access.

Currently, lateral beach access exists along the beach between the existing

northern developed property and the existing southern developed property. The

proposed structure will be located on the sandy beach, and the seaward face of

the proposed structure will be within approximately one foot of the wet sand

beach. At times, the proposed structure will be surrounded by water on at least

three sides. No alternative beach access would be available.

27. The proposed riprap will also be located on the sandy beach and will

further hinder lateral public beach access. 2/

28. Loggerhead turtles, which are nesting marine turtles, engage in

nesting activities along the stretch of beach where the subject property is

located. They are a threatened species, i. e., close to extension.

29. Although they do not nest every year, the turtles usually provide

several nests in a single year. Typically, one hundred eggs comprise a turtle

nest.

30. In 1992, approximately 2,221 loggerhead turtle nests were in Broward

County, with 22 of these nests located within 1,000 feet of the subject

property. Turtle nesting efforts have been observed in the beach area of the

subject property. One nest was found within the subject property.

31. Structures located on the sandy beach interfere with marine turtle

nesting habits. If female turtles make contact with the structures, they often

abort nesting attempts, which results in false crawls. Repetitive false crawls

harms successful nesting, which may cause malformed egg chambers, impacting the

successful incubation of the nest. Also, interaction with a structure can cause

injury or death to a female turtle attempting to nest.

32. Additionally, urbanization activity and lighting on the beach deter

nesting.

33. A loss of marine turtle nesting habitat will result if the proposed

structure is constructed.

34. Also, armoring, such as the proposed riprap, can result in nests being

placed more seaward. 3/ Consequently, the nests would be threatened with tidal

inundation, which would affect the mortality of the nest itself.

35. As one nest has been located within the subject property, at least one

nest or crawl per year would be affected by the proposed structure.

36. Within 30 years, the proposed structure will be seaward of the

seasonal high water line. The location of the proposed structure is seaward of

the 30-year erosion projection for the subject property.

37. Beach Defense Fund, Inc. (Intervenor) presented no evidence to show

that its interest is different than the public at large and that it has

substantial interest separate and apart from the public.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction over the

subject matter of this proceeding and the parties thereto, pursuant to

Subsection 120.57(1), Florida Statutes.

39. Petitioners, as the applicants for the permit, have the burden of

demonstrating entitlement to the permit. Florida Department of Transportation

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

40. The Florida Legislature has specifically recognized the importance of

preserving and protecting Florida's beaches and its coastal barrier dunes.

Section 161.053, Florida Statutes, provides in pertinent part:

(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 struc-

tures, endanger adjacent properties, or inter-

fere with public beach access.

41. Section 161.053, Florida Statutes, provides further in pertinent part:

(5) ...[A] permit to alter, excavate, or

construct on property seaward of established

Coastal Construction Control Lines may be

granted by the department as follows:

(a) The department may authorize an excava-

tion or erection of a structure at any coastal

location as described in subsection (1) 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 struc-

tures or activities; and

3. Potential impacts of the location of such

structures or activities, including potential

cumulative effects of any proposed structures

or activities upon such beach-dune system,

which, in the opinion of the department,

clearly justify such a permit.

42. Rule 62B-33.005, Florida Administrative Code, provides in pertinent

part:

(2) Seaward of the Coastal Construction

Control Line ... special siting, structural

and other design considerations are required:

(a) for the protection of the beach-dune

system;

(b) for the protection of any proposed or

existing structures; and

(c) for the protection of adjacent properties.

* * *

(7) An individual structure or activity may

not have an adverse impact on the beach or dune

system at a specific site; however, a number

of similar structures or activities along the

coast may have a significant cumulative impact

resulting in the general degradation of the

beach or dune system along that segment of

shoreline. The Department may not authorize

any construction or activity whose cumulative

impact will threaten the beach or dune system

or its recovery potential following a major

storm event.

43. Further, Rule 62B-33.007, Florida Administrative Code, provides in

pertinent part:

(1) The proposed structure or other

activity shall be located a sufficient dis-

tance landward of the beach-dune system to

permit natural shoreline fluctuations and to

preserve the dune stability and natural

recovery following storm induced erosion ...

(2) 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 Administra-

tive Code.

44. Petitioners have failed to demonstrate that their proposed

construction has satisfied or is not prohibited by the above cited statutory and

rule provisions .

45. At its discretion and under certain circumstances, Respondent may

grant a permit for construction seaward of the established coastal construction

control line. Subsection 161.053(5), Florida Statutes, provides in pertinent

part:

(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, and if

the existing structures have not been unduly

affected by erosion, a proposed structure may,

at the discretion of the department, be per-

mitted along such line on written authoriza-

tion from the department if such structure is

also approved by the department.

46. However, in the instant case, Respondent is prohibited from granting a

permit for any structure unless the structure falls within an exception.

Subsection 161.053(6), Florida Statutes provides in pertinent part:

(b) [T]he department ... 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 dis-

charge structures for a facility sited pur-

suant 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...

(c) Where the application of paragraph

(b) would preclude the construction of a struc-

ture, 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 struc-

ture; 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.

47. Petitioners have failed to demonstrate that their proposed structure

falls within the exception provided in Subsection 161.053(6).

48. Further, Petitioners have failed to demonstrate that the proposed

riprap, which is an armoring structure, will provide protection for an existing

structure in need of protection. Rule 62B-33.007(6), Florida Administrative

Code.

49. Subsection 370.12(1), Florida Statutes, provides in pertinent part:

(c)1. Unless otherwise provided by the

federal Endangered Species Act or its imple-

menting regulations, no person may take,

possess, disturb, mutilate, destroy, cause

to be destroyed, sell, offer for sale,

transfer, molest, or harass any marine turtle

or its nest or eggs at any time. For pur-

poses of this subsection, "take" means an act

which actually kills or injures marine turtles,

and includes significant habitat modification

or degradation that kills or injures marine

turtles by significantly impairing essential

behavioral patterns, such as breeding,

feeding or sheltering.

* * *

(e) The department may condition the nature,

timing, and sequence of construction of per-

mitted activities to provide protection to

nesting marine turtles and hatchlings and

their habitat pursuant to the provisions of

s. 161.053(5)...

(f) The department shall recommend denial

of a permit application if the activity would

result in a "take" as defined in this sub-

section, unless, as provided for in the

federal Endangered Species Act and its imple-

menting regulations, such taking is incidental

to, and not the purpose of, the carrying out

of an otherwise lawful activity.

50. Even though one nest has been located on the subject property, the

evidence shows that marine turtle nesting efforts have been observed on the

subject property. The evidence shows that construction of the proposed project

will result in a take as defined by Subsection 370.12(1)(c). Petitioners have

failed to demonstrate that they fall within the exception provided in Subsection

370.12(1).

51. Petitioners have indicated a willingness to change the proposed

structure to conform to Respondent's specifications for a single-family dwelling

and to eliminate the riprap. Such changes by Petitioners may place the proposed

structure within the exception of Subsection 161.053(6)(c) and deserves

consideration by Respondent. As to the issue of turtle nesting, perhaps a plan

could be developed, in accordance with Subsection 370.12(1)(e), to protect the

nesting marine turtles and hatchlings and their habitat.

52. Intervenor has failed to demonstrate that it has standing in the

instant case.

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 application of Paul Leto, Richard Meyer, and Berta Anderes for

a permit, pursuant to Section 161.053, Florida Statutes, for construction

seaward of the Coastal Construction Control Line in Broward County, Florida.

DONE AND ENTERED this 31st day of May, 1996, in Tallahassee, Leon County,

Florida.

___________________________________

ERROL H. POWELL, 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 31st day of May, 1996.

ENDNOTE

1/ At hearing, the Department of Environmental Protection (Respondent) was

represented by Dana M. Wiehle. Subsequently, Melease A. Jackson was substituted

as counsel of record for Respondent.

2/ The riprap is not an integral part of the proposed structure. Petitioners

indicate that the riprap can be eliminated.

3/ Ibid.

APPENDIX

The following rulings are made on the parties' proposed findings of fact:

Petitioners' Proposed Findings of Fact

1. Partially accepted in finding of fact 3.

2. Partially accepted in finding of fact 3.

3. Partially accepted in finding of fact 4.

4. Partially accepted in finding of fact 5.

5. Partially accepted in finding of fact 8.

6. Partially accepted in finding of fact 9.

7. Partially accepted in finding of fact 5.

8. Rejected as being not supported by the greater weight of the evidence.

9. Partially accepted in finding of fact 12.

10. Rejected as being argument, or a conclusion of law.

11. Partially accepted in finding of fact 13.

12. Partially accepted in findings of fact 30 and 35.

13. Partially accepted in finding of fact 20.

14. Partially accepted in finding of fact 19.

15. Partially accepted in finding of fact 25.

16. Rejected as being not supported by the greater weight of the evidence.

17. Rejected as being unnecessary, or irrelevant.

18. Partially accepted in finding of fact 37.

19. Rejected as being not supported by the greater weight of the evidence.

20. Rejected as being not supported by the greater weight of the evidence.

Respondent's Proposed Findings of Fact

1. Partially accepted in finding of fact 1.

2. Partially accepted in findings of fact 1, 2, 9, and 11.

3. Partially accepted in findings of fact 3 and 5.

4. Partially accepted in finding of fact 6.

5. See Preliminary Statement.

6. See Preliminary Statement.

7. Rejected as being unnecessary.

8. Rejected as being unnecessary.

9. Rejected as being argument, or a conclusion of law.

10. Rejected as being argument, or a conclusion of law.

11. Rejected as being argument, or a conclusion of law.

12. Rejected as being argument, or a conclusion of law.

13. Rejected as being argument, or a conclusion of law.

14. Rejected as being argument, or a conclusion of law.

15. Partially accepted in finding of fact 23.

16. Partially accepted in findings of fact 9 and 36.

17. Rejected as being argument, or a conclusion of law.

18. Partially accepted in finding of fact 7.

19. Partially accepted in finding of fact 16.

20. Partially accepted in finding of fact 17.

21. Rejected as being unnecessary.

22. Partially accepted in finding of fact 18.

23. Partially accepted in finding of fact 18.

24. Partially accepted in finding of fact 20.

25. Rejected as being argument, or a conclusion of law.

26. Partially accepted in finding of fact 14.

27. Partially accepted in findings of fact 21, 22, and 23.

28. Rejected as being unnecessary, argument, or a conclusion of law.

29. Partially accepted in finding of fact 24.

30. Partially accepted in finding of fact 24.

31. Rejected as being argument, or a conclusion of law.

32. Partially accepted in finding of fact 26.

33. Partially accepted in findings of fact 26 and 27.

34. Partially accepted in findings of fact 26 and 27.

35. Rejected as being argument, or a conclusion of law.

36. Partially accepted in finding of fact 28.

37. Partially accepted in finding of fact 30.

38. Partially accepted in finding of fact 29.

39. Partially accepted in finding of fact 31.

40. Partially accepted in finding of fact 34.

41. Partially accepted in findings of fact 32 and 33.

42. Partially accepted in finding of fact 35.

43. Rejected as being argument, or a conclusion of law.

44. Partially accepted in findings of fact 9 and 36.

45. Partially accepted in finding of fact 36.

46. Partially accepted in finding of fact 11.

47. Partially accepted in finding of fact 11.

48. Partially accepted in finding of fact 11.

49. Partially accepted in finding of fact 11.

Intervenor's Proposed Findings of Fact

At Intervenor's request, Respondent's proposed findings of fact are treated as

it's proposed findings of fact. As a result, the rulings on Respondent's

findings of fact are applicable to Intervenor

NOTE: Where a proposed finding has been partially accepted, the remainder has

been rejected as being unnecessary, irrelevant, cumulative, not supported by the

greater weight of the evidence, not supported by the more credible evidence,

argument, or a conclusion of law.

COPIES FURNISHED:

David B. Mankuta, Esquire

ATKINSON, DINER, STONE et al

Post Office Drawer 2088

Hollywood, Florida 33022-2088

Melease A. Jackson

Assistant General Counsel

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Mr. Steve Welsch, President

BEACH DEFENSE FUND, INC.

315 DeSoto Street

Hollywood, Florida 33019

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante

General Counsel

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended

order. All agencies allow each party at least ten days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this recommended order. Any exceptions to this recommended order should be

filed with the agency that will issue the final order in this case.

=================================================================

DEPARTMENT OF ENVIRONMENTAL PROTECTION'S FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

PAUL LETO, RICHARD MEYER, and

BERTA ANDERES,

Petitioners,

v. OGC Case No. 94-3756

DOAH Case No. 94-7073

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

BEACH DEFENSE FUND, INC.,

Intervenor.

________________________________/

FINAL ORDER

On May 31,1996, a Hearing Officer with the Division of Administrative

Hearings (hereinafter "DOAH") submitted his Recommended Order to the Department

of Environmental Protection, (hereafter "Department"). The Recommended Order

was also served upon Petitioners, Paul Leto, Richard Meyer, and Berta Anderes,

(hereafter "Petitioners"), and upon Intervenor, Beach Defense Fund, Inc.

(hereafter "Intervenor"). A copy of the Recommended Order is attached as

Exhibit A.

On June 13,1996, Exceptions to Recommended Order were filed on behalf of

the Department. Exceptions to Recommended Order were also filed on behalf of

Petitioners on June 14,1996. The Department subsequently filed a Response to

Petitioners' Exceptions to Recommended Order on June 25,1996. No Response to

Department's Exceptions were filed on behalf of Petitioners. No Exceptions or

Response to Exceptions were filed on behalf of Intervenor. The matter is now

before the Secretary of the Department for final agency action.

BACKGROUND

In November of 1993, Petitioners' representative filed a joint application

with the Department for construction of "two new single family attached dwelling

units", riprap structure, and associated minor structures on two adjacent lots

1/ in the City of Hollywood, Broward County, Florida. (Petitioners' Ex 3) The

proposed dwelling units and appurtenant structures are to be constructed on the

Atlantic Ocean beach in Hollywood. It is undisputed that the proposed

construction would extend in excess of 200 feet seaward of the Broward County

Coastal Construction Control Line 2/ (hereafter "CCCL").

The Department entered a "Final Order" on July 13,1994, denying Petitioners

application citing failure of the proposed beach construction project to comply

with various statutory and rule provisions dealing with requirements for CCCL

permits. (Petitioners' Ex. 4) Petitioners then timely filed a petition for

formal hearing challenging the denial of the permit and the matter was referred

to DOAH for assignment of a hearing officer. A formal hearing was held at

Hollywood, Florida, on December 7-8, 1995, before DOAH Hearing Officer Errol H.

Powell (hereafter "Hearing Officer"). The testimony of various witnesses was

presented and multiple exhibits were admitted into evidence at the formal

hearing on behalf of the Department, Petitioners, and Intervenor.

The Hearing Officer entered a Recommended Order on May 31,1996, concluding

that Petitioners failed to demonstrate that the proposed construction of the

dwelling units or riprap would comply with the pertinent provisions of Sections

161.053, Florida Statutes, and the related rule provisions of Rules 62B-33.005,

62B-33.007, Florida Administrative Code. The Recommended Order also concludes

that the evidence established that Petitioners' proposed construction would

constitute a "take" 3/ of marine turtle habitats as defined by Subsection

370.12(1)(c), Florida Statutes, and that Petitioners failed to demonstrate that

they fall within any exceptions set forth in Subsection 370.12(1). The Hearing

Officer ultimately recommended that the Department enter a Final Order denying

Petitioners' requested permit for construction of the proposed dwelling units,

appurtenant structures, and riprap on the beach seaward of the Broward County

CCCL.

STANDARDS OF AGENCY REVIEW

Exceptions to portions of the Findings of Fact, Conclusions of Law, and

Recommendation of the Hearing Officer have been filed on behalf of the

Department and/or Petitioners. As a preface to the following rulings on these

exceptions, it is appropriate to comment here upon the standards of review

imposed by Florida law on administrative agencies reviewing recommended orders

of hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency is free

to reject or modify a hearing officer's conclusions of law and interpretations

of administrative rules with which the agency disagrees. See, also, MacPherson

v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v.

Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985);

Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).

The statutory provisions of Section 120.57(1)(b)10 prescribe, however, that

the findings of fact of a hearing officer may not be rejected or modified,

"unless the agency first determines from a review of the complete record, and

states `with particularity in the order, that the findings of fact were not

based on competent substantial evidence..." Accord Martuccio v. Dept. of

Professional Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993); Freeze v. Dept.

of Business Regulation, 556 So.2d 1204,1205 (Fla. 5th DCA 1990); Florida

Department of Corrections v. Bradley, 510 So.2d 1122, 1123 (Fla. 1st DCA 1987).

RULINGS ON EXCEPTIONS OF DEPARTMENT

Finding of Fact 10 - Changing the Design of the Proposed Structure. and Finding

of Fact 12 - Eliminating Riprap Structure

These two Exceptions of the Department take exception respectively to the

Hearing Officer's Finding of Fact 10 in its entirety and to the second sentence

of Finding of Fact 12. The two Exceptions and corresponding findings of fact

deal with factual findings by the Hearing Officer as to the purported

willingness of Petitioners to modify their application to make changes in the

design of the proposed dwellings structure to comply with Department

specifications for a single-family residence and to entirely eliminate the

proposed riprap 4/ structure. The Department contends in its Exceptions that

there is no competent substantial evidence of record to support these challenged

findings of fact of the Hearing Officer.

The Department's Exception is correct in that none of the Petitioners

actually testified at the formal hearing that they are willing to amend their

permit application by dividing the "common wall "dwelling units into two

separate buildings and by eliminating the proposed riprap structure.

Petitioners' architect Derek Vander Ploeg did testify at the formal hearing that

the proposed riprap structure was not a "critical part" of his design. (Tr. 63-

64) Mr. Vander Ploeg further testified that he utilized a "common wall" design

for the dwelling structure due to "economics of construction", and that

conceivably you could build, duplicate the structure and build them any distance

apart that's practical." (Tr. 65-66) Richard Bochnovich, a civil engineer hired

to provide engineering expertise with respect to the proposed construction

described in Petitioners' permit application, also testified that the design of

the dwelling units is not "dependent upon that riprap." (Tr. 81)

In addition, the Petitioners' counsel of record in this case also

represented to the Hearing Officer in Petitioners' Proposed Finding of Fact 9

submitted after conclusion of the formal hearing that the rip rap structure "can

be eliminated to satisfy the concerns raised by Respondent's staff." Moreover,

Petitioners' represent in the last paragraph of their Exception 2 that, if the

only impediment to granting of the permit is that the two dwelling units be

physically separated, then "petitioners will simply divide the two".

Petitioners' counsel of record in this case is presumed to have authority to

make such representations in behalf of his clients in absence of any evidence to

the contrary.

In view of the above, the Department's Exceptions to the Hearing Officer's

Finding of Fact 10 and to the second sentence of his Finding of Fact 12 are

denied.

Exception to Conclusion of Law 51

This final Exception of Department takes issue with the Hearing Officer's

Conclusion of Law 51 in its entirety. The first sentence of Conclusion of Law

51 is merely a summary of the Hearing Officer's factual findings in Finding of

Fact 10 and the last sentence of Finding of Fact 12. The Department's Exception

to this first sentence of Conclusion of Law 51 is rejected for the reasons set

forth in the above rulings denying the Department's Exceptions to these related

findings of fact of the Hearing Officer.

As noted above in the Standards of Agency Review portion of this Final

Order, the reviewing agency is free to reject or modify a hearing officer's

conclusions of law with which the agency disagrees. The conclusion in the

second sentence of Conclusion of Law 51 suggesting that certain structural

changes to the design of the proposed dwelling units and elimination of the

proposed riprap purportedly acceptable to Petitioners "may place the proposed

structure within the exception of Subsection 161.053(6)(c) and deserves (sic)

consideration by the Respondent" appears to be a matter of future speculation

condemned by the court in Metropolitan Dade County v. Coscan Florida. Inc., 609

So.2d 644 (Fla. 3d DCA 1992). The final sentence of Conclusion of Law 51

suggesting that "perhaps a plan could be developed... to protect the nesting

marine turtles and hatchlings and their habitat" also appears to constitute

impermissible speculation by the Hearing Officer in violation of the Coscan

decision.

In Coscan, the court held that the hearing officer erred by relying on the

provisions of a settlement agreement between the Department and the permit

applicant dealing with future monitoring to constitute the necessary reasonable

assurances that the project met the applicable water quality standards based on

the evidence presented at the formal hearing. The court ruled in the Coscan

opinion that:

We conclude that the hearing officer must

examine the applicant's proposal to

determine [at this time] whether the project

provides the necessary reasonable assurances

called for by the statute.

[emphasis supplied].

Id. at 609 So.2d 648

The Coscan decision was expressly relied upon in the Department's Final

Order in Tamaron Utilities. Inc. v. Dept. of Environmental Protection, 16 FALR

3112 (DEP June 17,1994). In the Tamaron Utilities Final Order, the Department

concluded as follows:

The attempt of the Hearing Officer to

impose upon the Department the duty to draft

conditions in the Final Order that might or

might not ultimately result in Tamaron's

compliance with the Grizzle-Figg advanced

waste treatment requirements is too

speculative to comply with Florida case law

holding [that a permit applicant has to

provide reasonable assurances at the time of

the hearing] that the project complies with

the applicable statutory and rule requirements

for design, operation and discharge.

[emphasis supplied]

Id. at 3122.

The Hearing Officer's suggestions that the specified potential design

changes to Petitioners' permit application "deserves (sic) consideration by the

Respondent" and that "perhaps a plan could be developed" to resolve his finding

of a take of marine turtle nests and their habitats are rejected as

impermissible speculation in violation of the quoted Coscan rationale as

interpreted in the Tamaron Utilities Final Order. It is also significant that

the ultimate Recommendation of the Hearing Officer in this case is for outright

denial by the Department of Petitioners' permit application and omits any

suggestions that the application be amended and supplemented as suggested in

Conclusion of Law 51.

Based on the matters discussed above, the Department's Exception to

Conclusion of Law 51 is denied as to the first sentence and is granted as to the

second and third sentences.

RULINGS ON PETITIONERS' EXCEPTIONS

Exception 1- Finding of Fact No. 8

This initial Exception of Petitioners takes issue with the Hearing

Officer's failure to include in his Finding of Fact No. 8 the undisputed fact

that construction of "single- family" residences on the subject beach lots was

expressly approved by the City of Hollywood. (Petitioners' Exhibits 5 and 6)

The Department's Response to Exceptions does not contain any opposing argument

as to this particular Exception of Petitioner. Petitioners, however, have not

cited any legal authority arguably holding that the Department is bound by the

City of Hollywood's zoning determination in its interpretation of whether a

proposed structure in a CCCL permit application is a "single-family dwelling"

within the purview of the exception provisions of Section 161.053(6)(c), Florida

Statutes.

The Department's own Rule 62B-33.005(6), Florida Administrative Code,

provides in pertinent part that "the Department will not consider as binding

county and municipal zoning and building codes, or property covenants or deed

restrictions, which are contrary to the purposes of Chapter 161, Florida

Statutes." See, also, Stradler v. Oakley, 410 So.2d 954 (Fla. 1st DCA 1982),

concluding that the meaning of a term such as "one dwelling" or "dwelling house"

as applied in exemptions, criminal law, or zoning ordinances "may vary with the

context of its usage." Id. at 955.

With the caveat noted above, Petitioners' Exception 1 is granted.

Exception 2- Finding of Fact No. 9

Petitioners' second Exception takes exception to the Hearing Officer's

finding in the second sentence of his Finding of Fact No. 9. The Hearing

Officer found therein that the proposed dwelling structure as designed by the

architect in the pertinent documents submitted to the Department in connection

with Petitioners' permit application is actually a "duplex", rather than "two

attached single-family dwelling units" as characterized by Petitioners. 5/

This finding of fact of the Hearing Officer affirms the same finding of fact in

the Department's "Final Order" filed on July 13,1994, which initiated this

formal administrative proceeding. (Petitioners' Ex. 4, page 1) Petitioners

contend that there-is no competent substantial evidence of record to support

this finding of the Hearing Officer. The Department's Response to Exceptions

asserts that the Hearing Officer's finding that the dwelling structure as

designed in the permit application documents is a duplex rather than two

separate single-family residences is supported by the testimony at the formal

hearing of its expert witness J. B. Manson-Hing.

Mr. Manson-Hing is a civil engineer and longtime employee with the

Department who was accepted by the Hearing Officer as an expert in coastal

engineering and coastal processes without any objection from Petitioners'

counsel.6 (Tr. 194-199) Manson-Hing testified that one of his duties as Area

Engineer for Broward County is to determine whether the proposed structures in a

CCCL permit application meet the necessary statutory and rule requirements,

including a determination as to whether any proposed dwelling structures are

single-family dwellings or multifamily dwellings. (Tr. 213) Mr. Manson-Hing

repeatedly testified to his professional opinion that Petitioners' proposed

dwelling structure was a "multifamily structure" or "two-family dwelling", which

is a "duplex". (Tr. 213, 216-217, 226)

As noted above in the Standards of Agency Review, it is a settled rule of

administrative law that the findings of fact of a hearing officer may not be

rejected or modified, unless the agency first determines from a review of the

complete record that the findings of fact were not based on competent

substantial evidence. This expert testimony of Mr. Manson-Hing constitutes

competent substantial evidence supporting the challenged finding of the Hearing

Officer that Petitioners' proposed dwelling structure is not a "single-family

dwelling" within the purview of the exception provisions of Section 161

.053(6)(c), Florida Statutes.

The case law of Florida uniformly holds that considerable deference should

be accorded to administrative interpretations of statutes and rules that the

agency is required to enforce, and that such administrative interpretations

should not be overturned unless clearly erroneous. See, e.g., Falk v. Beard,

614 So.2d 1086,1089 (Fla. 1993); Dept. of Environmental Regulation v. Goldring,

477 So.2d 532, 534 (Fla. 1985); Harloff v. City of Sarasota, 575 So.2d 1324,1327

(Fla. 2d DCA 1991); Reedy Creek Improvement Dist. v. Dept. of Env. Regulation,

486 So.2d 642, 648 (Fla. 1st DCA 1986). Furthermore, the administrative

interpretation of the governing statutory and rule provisions by the enforcing

agency does not have to be the only one, or even the most desirable

interpretation. It is enough if the agency interpretation is a permissible one.

Golfcrest Nursing Home v. State. Agency for Health Care Admin., 662 So.2d 1330,

1333 (Fla. 1st DCA 1995); Little Munyon Island v. Dept. of Environmental

Regulation, 492 So.2d 735, 737 (Fla. 1st DCA 1986).

This agency interpretation that Petitioners' proposed dwelling units

constitute a multifamily duplex rather than two single-family dwellings within

the purview of the exception provisions of Section 161.053(6)(c), Florida

Statutes, as testified to by the Department's longtime CCCL permit reviewer J.

B. Manson-Hing, does not appear to be clearly erroneous or impermissible. It is

an established rule of statutory construction that exception provisions to a

general statutory prohibition are to be strictly construed against the party

attempting to take advantage of the exception. See, e.g., State v. Nourse, 340

So.2d 966, 969 (Fla. 3d DCA 1976); 49 Fla. Jur. 2d, Statutes, Sec. 199.

Furthermore, it is uncontroverted that the proposed dwelling units in this case

have a common foundation and are only separated by a "common wall". (Tr. 65-66,

216; Petitioners' Ex. 7) In the opinion in Overstreet v. Turbin. 53 So.2d 913

(Fla. 1951), the Florida Supreme Court observed that "[t]he structures here

involved are so called duplex or two-family dwellings], each unit being owned in

fee simple by separate owners, having separate plumbing and electrical wiring,

separate entrances and walkways, [and being connected only by an eight-inch

party wall]." [emphasis supplied] Id. at 914.

Petitioners correctly note in this Exception that their architect Derek

Vande Ploeg did testify at the formal hearing that he designed the proposed

dwelling units as "two single-family residences". Mr. Vande Ploeg, however,

never gave any specific testimony as to his interpretation of the statutory term

"single-family dwelling" as codified in Subsection 161.053(6)(c), Florida

Statutes. Moreover, a review of the transcript of the formal hearing testimony

reveals that Mr. Vande Ploeg was never tendered by Petitioners nor accepted by

the Hearing Officer as an expert witness in the DOAH proceedings. (Tr. 56-69)

In any event, even if this testimony of Derek Vande Ploeg was deemed to be

conflicting "expert testimony", the decision to accept one expert's testimony

over that of another is a matter within the sound discretion of the Hearing

Officer and cannot be altered by the reviewing agency, absent a complete lack of

competent substantial evidence of record from which the finding could be

reasonably inferred. See, Collier Medical Center v. State, Dept. of HRS, 462

So.2d 83,85 (Fla. 1st DCA 1985); Florida Chapter of Sierra Club v. Orlando

Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Furthermore, the

sufficiency of the facts required to form the opinion of an expert must normally

reside with the expert and any purported deficiencies in such facts relate to

the weight of the evidence, a matter also within the province of the Hearing

Officer as the trier of the facts. Gershanik v. Dept. of Professional

Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984), rev. den. 462 So.2d 1106

(Fla. 1985).

In view of the above, Petitioners' Exception 2 taking exception to the

second sentence of the Hearing Officer's Finding of Fact No. 9 is denied.

Exception 3-Findings of Fact Nos. 12, 17, and 18

In this composite Exception, Petitioners apparently take exception to the

Hearing Officer's findings in Findings of Fact 17 and 18 that the proposed

riprap structure will increase erosion of the subject beach area due to "scour

erosion". The reference to Finding of Fact 12 is seemingly inexplicable since

Petitioners' Exception states they "do not take issue with the [Hearing

Officer's] finding that the riprap structure is not an integral part of the

plan" and their Proposed Finding of Fact 9 submitted to the Hearing Officer

concurs with his finding that Petitioners are willing to eliminate the riprap

structure.

The testimony of record does not support Petitioners' assertion that it is

"undisputed that a rip rap structure will inhibit erosion and protect against

scouring." The Hearing Officer's findings that the riprap structure will "induce

greater erosion on the lots as a result of scour" and that "the normal storm-

induced erosion combined with the scour erosion will form a breach or depression

in the subject property "are amply supported by the expert testimony of J. B.

Manson-Hing. (Tr. 235-237) Petitioners rely on the conflicting testimony of

their witness Derek Vander Ploeg that the riprap structure would have a positive

effect by enhancing beach renourishment. (Tr. 62-64)

The agency reviewing a recommended order may not reweigh the evidence,

resolve conflicts therein or judge the credibility of witnesses, as those are

evidentiary matters within the province of the hearing officer as the trier of

the facts. Martuccio v. Dept. of Professional Regulation, 622 So.2d 607, 609

(Fla. 1st DCA 1993); Heifetz v. Dept. of Business Regulation, 475 So.2d

1277,1281 (Fla. 1st DCA 1985). A reviewing agency is also not free to modify

the findings of fact in a recommended order to fit a conclusion desired by it or

by a party by interpreting the evidence or by drawing inferences therefrom in a

manner different from the interpretations made and inferences drawn by a hearing

officer from the testimony at an administrative hearing. Id. at 1281-1282.

Based on the matters discussed above, Petitioners' Exception 3 taking

Exception to the Hearing Officer's Findings of Fact Nos. 12,17, and 18 is

denied.

Exception 4- Finding of Fact No. 24

This cursory one-paragraph Exception takes issue with the Hearing Officer's

finding of a severe [adverse] cumulative impact 7/ on the beach system if

Petitioners' proposed project was permitted and constructed. This finding of

the Hearing Officer is based on the uncontroverted expert testimony of J. B.

Manson-Hing. (Tr. 261-263; 364-365). As noted previously in this Final Order,

a reviewing agency has no authority to substitute its judgment for that of a

hearing officer by reweighing the evidence, judging the credibility of

witnesses, or interpreting the evidence and inferences drawn therefrom in a

different manner. Such judgments, interpretations, and inferences are

evidentiary matters within the province of the hearing officer as the trier of

the facts. Consequently, Petitioners' Exception 4 taking exception to Finding

of Fact No. 24 is denied.

Exception 5- Finding of Fact No. 30

Petitioners' Exception 5 takes exception to the Hearing Officer's findings

relating to evidence of the existence of loggerhead turtle 8/ nests and

nesting efforts on the proposed building site and at other beach locations in

the immediate vicinity. These factual findings set forth in the Hearing

Officer's Finding of Fact No. 30 and the related Conclusion of Law 50 are based

on the uncontroverted expert testimony of the Department's witness Michael Sole

and Petitioners' own exhibit. (Tr. 457, 481-485; Petitioners' Ex. 8) Mr. Sole

was accepted by the Hearing Officer as an expert in marine turtle conservation.

(Tr. 427-433)

Petitioners correctly observe in this Exception that there was evidence of

only one marine turtle nesting site on the subject property. The evidence also

established, however, the existence of in excess of 50 marine turtle nests on

the beach within 1,000 feet of the subject property during the years 1991

through 1995. (Tr. 457) Petitioners are once again disagreeing with the Hearing

Officer on the sufficiency and weight of the evidence to support his findings of

fact. As previously discussed herein, questions relating to the sufficiency and

weight of the evidence, including expert testimony, are evidentiary matters

within the province of the Hearing Officer and the reviewing agency does not

have authority to substitute its judgment on such evidentiary matters.

Accordingly, Petitioners' Exception 5 taking exception to the Hearing Officer's

Finding of Fact No. 30 is denied.

Exception 6- Conclusions of Law Nos. 46-47

Petitioners' final Exception takes issue with the Hearing Officer's

Conclusions of Law 46 and 47 concluding that Petitioners have failed to

demonstrate that their proposed dwelling units fall within the "single-family

dwelling" exception set forth in Subsection 161.053(6)(c), Florida Statutes.

These Conclusions of Law relate back to and are integrally connected with the

Hearing Officer's Finding of Fact 9. This Exception must be rejected for the

reasons set forth in the prior ruling denying Petitioners' Exception to Finding

of Fact No. 9.

It is also significant that the singlefamily dwelling exception provisions

of Section 161.053(6)(c) are not mandatory in nature. To the contrary, the

discretionary nature of this statutory subsection is evidenced by the plain

language stating that "...the department [may issue] a permit for a single-

family dwelling for the parcel so long as..." [emphasis supplied] Thus,

Petitioners would have no absolute right to the grant of this exception to the

general prohibition of Section 161.053(6)(b) against issuing CCCL permits for

structures located seaward of the projected 30-year erosion control line even if

the Department had determined that proposed dwelling units were two separate

single-family dwellings. In fact, Mr. Manson-Hing actually testified at the

formal hearing that, even if the project design was amended to construct two

separate freestanding dwelling structures, he would not change his opinion that

the permit should be denied due to the erosion problem on the beach. (Tr. 337)

Consequently, Petitioners' Exception 6 taking exception to the Hearing

Officer's Conclusions of Law 46 and 47 is denied.

CONCLUSION

Notwithstanding the assertions of Petitioners' counsel to the contrary,

this is not a case of minor design problems with the proposed structures that

are easily resolvable by a couple of changes in the project blueprints. The

Department's Broward County Area Engineer and chief CCCL permit reviewer J. B.

Manson-Hing testified at the formal hearing that Petitioners' proposed

construction would exacerbate erosion problems at the beach site and that the

application would not comply with the CCCL permit requirements even if the

dwelling units were separated and the riprap eliminated. Mr. Manson-Hing also

testified of his opinion that the project would hinder lateral access of the

public along the beach due to the proximity of the eastern extremities of the

dwelling structure to the waters of the Atlantic Ocean.

The Hearing Officer's related Findings of Fact 19-23 and 26 finding that

existing beach erosion problems will be heightened and that lateral public beach

access will be hindered by the proposed structures were not even challenged in

Petitioners' Exceptions. Thus, Petitioners' claim that the Department staff

reviewing their application could have and should have done more to resolve the

project's primary defects is not compelling. Finally, the Coscan decision

obviously imposes severe restrictions on the legality of agreements entered into

between the Department and an applicant after the conclusion of a DOAH formal

hearing in an attempt to bring an application into compliance with the

applicable permitting laws.

It is therefore ORDERED:

A. Finding of Fact 8 of the Recommended Order is modified by adding the

words "for single-family residences" at the end.

B. Conclusion of Law 51 of the Recommended Order is modified by deleting

therefrom the second and third sentences and by adding thereto a new second

sentence reading as follows:

These proposed changes in the design of

Petitioners' project, however, would not

remedy the Department's major objections to

their permit application.

C. The Recommended Order of the Hearing Officer, as modified in paragraphs

A and B above, is adopted and incorporated herein by reference.

D. The Department's "Final Order" filed in File Number BO-335 on July 13,

1994, is affirmed.

E. Petitioners' application for a coastal construction control line permit

in Broward County, Florida, is DENIED.

Any party to this Order has the right to seek judicial review of the Order

pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of

the Notice of Appeal accompanied by the applicable filing fees with the

appropriate District Court of Appeal. The Notice of Appeal must be filed within

30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 12th day of July, 1996, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

ENDNOTES

1/ Petitioner Leto is the owner of one of the lots described as Lot 19, Block

196, Hollywood Central Beach, Plat Book 4, Page 20, Public Records of Broward

County. Petitioners Meyer and Anderes are the owners of the adjacent lot

described as Lot 20, Block 196, Hollywood Central Beach, Plat Book 4, Page 20,

Public Records of Broward County.

2/ Section 161.053(1)(a), Florida Statutes, requires the Department to

establish "coastal construction control lines on a county basis along the sand

beaches of the state... so as to define that portion of the beach-dune system

which is subject to severe fluctuations based on a 100-year storm surge, storm

waves, or other predictable weather conditions." The Broward County CCCL was

established by the Department and is codified in Rule 62B-26.013, Florida

Administrative Code. The cited Section 161.053 and Rule 62B-26.013 require a

permit from the Department for any excavation or construction on property

seaward of the established CCCL.

3/ Subsection 370.12(1)(c)1, Florida Statutes, provides that "[f)or purpose of

this subsection, take means an act which actually kills or injures marine

turtles, and includes significant habitat modification or degradation that kills

or injures marine turtles by significantly impairing essential behavioral

patterns, such as breeding, feeding or sheltering."

4/ The term "riprap" is defined by Department rule as "a sustaining wall made

to reduce the force of waves and to protect the shore from erosion and consists

of unconsolidated boulders, rocks, or clean concrete rubble with no exposed

reinforcing rods or similar protrusions." Rule 62-312.020(16), Florida

Administrative Code.

5/ The determination of whether or not Petitioners' proposed dwelling structure

is a "duplex" or a "single-family dwelling" is significant in this case. The

Hearing Officer correctly concluded in Conclusion of Law 46 that the Department

is prohibited by the provisions of Section 161.053(6)(b), Florida Statutes, from

granting a CCCL construction in this case unless Petitioners' proposed structure

falls within the "single-family dwelling" exception of Section 161.053(6)(c).

This reliance on the "single-family dwelling" exception of Section 161

.053(6)(c), Florida Statutes, as the sole basis for entitlement to the requested

CCCL construction permit is acknowledged by Petitioners in their Proposed

Conclusions of Law 5 and 6 filed with the Hearing Officer subsequent to the

formal hearing.

6/ Mr. Manson-Hing is the Department Area Engineer for Broward County, Dade

County, Monroe County and other counties along the Gulf Coast from Pasco County

to Wakulla County. (Tr. 199) He is the person responsible for making final

recommendations to the Department Secretary (formerly "Executive Director")

concerning CCCL permit applications in Broward County. (Tr. 199-200)

7/ In the course of its review of a CCCL permit application, the Department is

required to not only consider whether a structure will have an adverse impact on

the beach or dune system at a specific site, but must also consider whether "a

number of similar structures or activities along the coast may have a

significant cumulative impact" on the beach or dune system. Rule 62B-33.005(7),

Florida Administrative Code.

8/ Loggerhead turtles are one of three species of marine turtles which

routinely nest on Florida beaches. (Tr. 435) Loggerhead turtles and four other

specified marine turtle species are protected under federal and state laws.

See, ., Section 370.12(1), Florida Statutes; Rule 62B-33.005(9), Florida

Administrative Code.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent via

United States Postal Service to:

David B. Mankuta, Esquire

Atkinson, Diner, Stone & Mankuta, P.A.

Post Office Drawer 2088

Hollywood, Florida 33022-2088

Steve Welsch, President

Beach Defense Fund, Inc.

315 DeSoto Street

Hollywood, Florida 33019

Ann Cole, Clerk and

Errol H. Powell, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

and by hand delivery to:

Melease A. Jackson, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

this 15th day of July, 1996.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

J. TERRELL WILLIAMS

Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, Florida 32399-3000

Telephone [phone]

=================================================================

FLORIDA LAND AND WATER ADJUDICATORY COMMISSION'S FINAL ORDER

=================================================================

STATE OF FLORIDA

PAUL LETO, RICHARD MEYER,

and BERTA ANDERES,

Petitioners,

CASE NO. DEP RFR 94-011

vs. DOAH CASE NO. 94-7073

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent.

_____________________________/

FINAL ORDER

This cause came before the Governor and Cabinet, sitting as the Florida

Land and Water Adjudicatory Commission (the "Commission"), on November 19, 1996,

pursuant to a Request For Review filed by Paul Leto, Richard Meyer, and Berta

Anderes, Petitioners, pursuant to Rule 42-2.0131, Florida Administrative Code.

No member having accepted the request to review, we hereby deny the request

filed by Petitioners.

Any party to this Order has the right to seek judicial review of the Order

pursuant to section 120.66, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

Clerk of the Commission, Office of Planning and Budgeting, Executive Office of

the Governor, The Capitol, Room 2105, Tallahassee, Florida 32399- 0001; and by

filing a copy of the Notice of Appeal, accompanied by the applicable filing

fees, with the appropriate District Court of Appeal. Notice of Appeal must be

filed within 30 days of the day this Order is filed with the Clerk of the

Commission.

DONE AND ORDERED, this 19th day of November 1996, in Tallahassee, Florida.

_____________________________

Teresa B. Tinker

for ROBERT BRADLEY, Secretary

Florida Land and Water

Adjudicatory Commission

FILED with the Clerk of the Florida Land and Water Adjudicatory Commission this

19th day of November, 1996.

_____________________________

Patricia A. Parker

Clerk, Florida Land and Water

Adjudicatory Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to

the following persons by United States mail or hand-delivery this 19th day of

November, 1996.

_____________________________

ROBERT BRADLEY, Secretary

Florida Land and Water

Adjudicatory Commission

Honorable Lawton Chiles Honorable Sandra Mortham

Governor Secretary of State

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Milligan Honorable Bill Nelson

Comptroller Insurance Commissioner

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Butterworth Honorable Frank Brogan

Attorney General Commissioner of Education

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Bob Crawford Greg Smith, Esquire

Commissioner of Agriculture Counsel to Governor & Cabinet

The Capitol The Capitol, Room 209

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Errol H. Powell, Administrative David B. Mankuta, Esquire

Law Judge Atkinson, Diner, Stone &

Division of Administrative Mankuta, P.A.

Hearings Post Office Drawer 2088

The DeSoto Building Hollywood, Florida 33022-

1230 Apalachee Parkway 20886

Tallahassee, Florida 32399-1550

Perry Odom Clerk

General Counsel Department of Environmental

Department of Environmental Protection

Protection 3900 Commonwealth Blvd.

3900 Commonwealth Blvd. Mail Station 35

Mail Station 35 Tallahassee, Florida 32399-

Tallahassee, Florida 32399-3000 3000

Melease Jackson Steve Welschp, President

Assistant General Counsel Beach Defense Fund, Inc.

Department of Environmental 315 DeSoto Street

Protection Hollywood, Florida 33019

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000

Florida Administrative Law Errol H. Powell

Reports Administrative Law Judge

Post Office Box 385 Division of Administrative

Gainesville, Florida 32602 Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-