STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAYSHORE HOMEOWNERS ASSOCIATION, )

INC., et al, )

)

Petitioners, )

)

vs. ) CASE NOS. 80-670

) 80-768

) 80-815

STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES and GROVE ) ISLE, LTD., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held a final hearing in this case on August 6 and 7, 1980, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: David A. Doheny, Esquire Bayshore Home- 1111 South Bayshore Drive owners Association, Miami, Florida 33131

et al. 1/

William Cleare Filer, Pro Se 3095 Northwest 7th Street Miami, Florida 33125

Bayshore Alert: Joel S. Jaffer, Pro Se

YES Committee 2479 Southwest 13th Street

Miami, Florida 33145

For Respondent: Henry Dean, Esquire Department of Division of State Lands

Natural Resources Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32304

For Intervenor- Larry S. Stewart, Esquire Respondent: One Biscayne Tower Grove Isle, Ltd. Twenty-fifth Floor

Miami, Florida 33131

These proceedings began sometime between March 25, 1980 and April 2, 1980 2/ when Joel S. Jaffer on behalf of himself, and Bayshore Alert: YES Committee filed a petition for administrative hearing with the Respondent, Department of Natural Resources (DNR). Later petitions on behalf of William Cleare Filer,

(April 21, 1980) and the Bayshore Homeowners Association, Inc. (April 9, 1980) were filed. The foregoing three petitions were then forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.

Prior to the final hearing a prehearing conference was held in Tallahassee on Grove Isle, Ltd.'s Motions To Intervene And To Dismiss the Petitions. DNR joined in the Motions To Dismiss. Grove Isle was allowed to intervene as a party on the side of the Respondent and the Motions To Dismiss were carried with the case to be addressed in the Recommended Order. 3/ They are discussed below in the Conclusions of Law.

The final hearing was noticed for and held on August 6 and 7, 1980. The Homeowner Petitioners presented as their witnesses, Gabriel Denes, Dr. Robert Kelly, Warren John Rose, Joseph W. Beasley, Esquire, and Brian Mark, Esquire. David A. Doheny, Esquire also provided testimony, but it was limited to his own personal standing. Bayshore Homeowners offered Exhibits 1-26 into evidence.

Exhibits 1-20, 22-25 were received into evidence. Petitioner, Joel Jaffer offered his own testimony and Exhibit 1 which was received into evidence. Petitioner, William Cleare Filer testified in support of his petition. He offered no exhibits. Respondent, DNR presented Ted Forsgren as its witness and offered Exhibits 1-6 which were received into evidence. Intervenor-Respondent, Grove Isle, Ltd. presented no witnesses but offered Exhibits 1-4, which were received into evidence.

During the course of the hearing, Grove Isle, Ltd. requested the testimony of David A. Doheny, Esquire by subpoena. Upon his refusal to respond, and upon the denial of his Motion To Quash The Subpoena, Grove Isle requested sanctions in the form of a default to be entered against Mr. Doheny as an individual party. A ruling on that Motion was reserved until this Recommended Order. In light of the circumstances at the hearing, including the surprise to Mr. Doheny that he might be called as a witness and be compelled to provide testimony which could possibly be adverse to his clients in this case, the Motion For Sanctions is hereby DENIED.

At the beginning of the hearing the Hearing Officer noted that Mr. Joel S. Jaffer was appearing to represent Bayshore Alert: YES (BAY) Committee. Mr.

Jaffer has not been admitted to the bar of any court in this country and has no legal training. Pursuant to the directions of The Florida Bar v. Moses, 380 So.2d 412 (Fla. 1980) inquiry was made to determine if Mr. Jaffer was capable of preserving the rights of a party. Section 28-5.105, Florida Administrative Code. It is concluded that Mr. Jaffer did not have the requisite ability to represent another party. He was however allowed to participate in the proceeding on a pro se basis with himself as a party-Petitioner.

All the parties except for William Cleare Filer have submitted proposed findings of fact. Careful consideration has been given to those proposed findings. To the extent they are not contained in this Order, they are rejected as being either not supported by competent substantial evidence or as irrelevant and immaterial to the issues for determination here.

FINDINGS OF FACT

1. Petitioner, Grove Isle, Ltd. is the developer of a 510 unit three-tower condominium project on an island now known as Grove Isle in Biscayne Bay. As part of the project Grove Isle plans to construct a ninety slip pleasure boat marina on the west side of the island.

2. Since its inception, the project has been in litigation between the parties to this Proceeding. See Bayshore Homeowners Association, Inc., et al v. DER, DOAH Case No. 79-2186, 79-2324 and 79-2354; State ex rel. Gardner v. Sailboat Key, Inc., 295 So.2d 658 (Fla. 3rd D.C.A. 1974); Doheny vs. Sailboat Key, Inc., 306 So.2d 616 (Fla. 3rd D.C.A. 1974); Bayshore Homeowners Association, Inc. v. Ferre, Case No. 80-101-AP (Circuit Court, Appellate Division, Dade County, September 16, 1980).

   
   

3. Petitioners Doheny and Filer have their residences near the site of the proposed marina. In the past they have used the waters in and around this site for fishing, boating and swimming. If the marina is constructed their use of the waters in the immediate area of the marina could be limited somewhat.

   
   

4. While Petitioner Jaffer does not live in the immediate area of the marina, he also uses the waters of Biscayne Bay around Grove Isle for recreation. The project could have some minimal impact on his use of those waters.

   
   

5. The protesting organizations: Bayshore Homeowners Association, Inc., Coconut Grove Civil Club, Tigertail Association, and the Tropical Audubon Society, Inc. all have members who use the waters of Biscayne Bay in the area of the project for nature study or recreation. The use of these waters by their members could be diminished in some degree if the marina is constructed.

   
   

6. That portion of Grove Isle from which the marina will project is owned by Grove Isle Club, Inc., an entity created to operate the recreational facilities appurtenant to the Grove Isle Condominium. The Club is an integral part of the Grove Isle condominium project. Membership in the Club is mandatory for unit owners. It is the plan of Grove Isle, Ltd. that after the marina is constructed the individual wet-slips will be sold to only condominium owners. Grove Isle, Ltd. expects to realize a onetime profit from the sale of each slip. The slips would therefore not produce a periodic or reoccurring income to the developer.

   
   

7. In the recent past, DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a regular income.

   Evidence of this practice dates back to June 8, 1978.

   
   

8. On March 29, 1979, Grove Isle applied to DNR for a state lease of the submerged lands over which the proposed marina would be constructed. By a letter of April 4, 1979, from Daniel S. Meisen, Administrator, Operations Section, Bureau of State Lands, the Department informed Grove Isle that a lease would not be required. The full text of the letter follows:

   April 4, 1979

   
   

   Ms. Pat Bourguin Post, Buckley, Schub

   and Jernigan, Inc.

   7500 Northwest 52nd Street Miami, Florida 33166

   
   

   
   

   Dear Ms. Bourguin: Martin Margulies

   A review of the above referenced application has aided us in determining that a lease will not be required although the submerged bottom lands are state-owned. Submerged land leases are not re- quired for private docks or non-income producing facilities.

   
   

   Your $150.00 refund is being processed and will be forwarded to you within the next two months. If we can be of further assistance in this matter, please contact Laura Lewallen of this office.

   
   

   Sincerely,

   
   

   
   

   Daniel S. Meisen Administrator Operations Section Bureau of State Lands

   
   

   DSM/11m

   
   

   cc: DER

   West Palm Beach Health Department

   
   

9. The State of Florida owns the submerged lands to the west of Grove Isle over which the marina would be constructed.

   
   

10. Beginning in the fall of 1979 and continuing through the spring of 1980, there was a string of correspondence between DNR, Mr. Doheny and Grove Isle. This was its basic pattern. Mr. Doheny would write to DNR with some information indicating in his opinion that the proposed marina would not be private in nature, that is, persons other than condominium owners might be able to use the wet-slips. In response to Mr. Doheny's letter DNR would then query Grove Isle requesting assurances that the marina would be private. At least three of these inquiries, April 26, 1979; October 26, 1979; and February 12, 1980, appear in the record. Grove Isle then responded with letters indicating in various ways that the marina would not be income producing. It is apparent from some of the correspondence that there were also oral communications among the parties. The contents of these communications do not appear in the record.

    
    

11. Finally on March 13, 1980, Mr. Doheny wrote to DNR on behalf of the Homeowner Petitioners to express his disagreement with the Department's position previously expressed in correspondence dating back to April 4, 1979, that if the

    proposed marina is limited to only condominium owners and does not produce direct income then it does not require a lease. Mr. Dean on behalf of Dr. Gissendaner replied to Mr. Doheny on March 24, 1980, by reiterating the Department's consistent position on this project. The text of the letter fellow's:

    March 24, 1980

    
    

    David A. Doheny, Esquire 1111 South Bayshore Drive Miami, Florida 33131

    
    

    Re: Grove Isle Marina Dear David:

    Dr. Gissendanner asked that I respond to your letter dated March 13, 1980 regarding Grove Isle

    Marina. Attached his a copy of the affidavit executed by Grove Isle, Ltd. and the subsequent letter to Grove Isle, Ltd. from the Department of Natural Resources.

    It is the position of the Department of Natural Resources that where a condominium marina will derive no income from the rental or lease of boat slips and furthermore, where all slips will be used exclusively by the condominium unit purchasers that the marina is not a commercial/industrial docking facility requiring a lease from the Trustees pursuant to Rule 16C-12.14,

    F.A.C. and Chapter 253.03, F.S. (1979).

    
    

    This position is based on the proposition that riparian rights attached to a single condominium unit

    purchaser as do riparian rights for a single family lot owner who likewise is exempt from a submerged land lease.

    
    

    Sincerely,

    
    

    
    

    Henry Dean

    Assistant Department Attorney

    Division of State Lands

    HD/le Enclosures

    
    

    cc: Elton J. Gissendanner Richard P. Ludington

    
    

12. On May 3, 1979, the Board of Trustees of the Internal Improvement Trust Fund passed a resolution which states in pertinent part that:

    
    

    Where the Trustees have title, by either deed of conveyance or sovereignty pursuant to 1 and/or 2 above, and where any person has requested an environmental or other permit and where the Trustees neither by statute nor rule must give permission for the use involved in the permit, the Execu- tive Director is authorized to indicate, by letter or otherwise, said circumstances and that no action by the Trustees is necessary for the said use; . . .

13. Subsequently Mr. Jaffer, the Homeowners and Mr. Filer filed their petitions for administrative hearings on April 2, 1980, 4/ April 9, 1980, and April 21, 1980, respectively.

    
    

14. DNR's position concerning a lease requirement was well known to all of the Petitioners by at least January 2 and 3, 1980, the date of the final hearing on the related DER cases for the instant project. 5/

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.65, Florida Statutes (1979).

    
    

16. By their petitions the Petitioners asked that DNR change its opinion that Grove Isle, if it constructs the proposed marina according to plans, will not need a state lease for the proposed use of sovereign lands. Both Grove Isle and DNR challenge the Petitioners' standing to bring these proceedings. They argue that none of the Petitioners has either pled or proven any special injury, different from that of the general public, which is sufficient to establish standing. See, United States Steel Corporation v. Save Sand Key, Inc. 303 So.2d

    9 (Fla. 1974) and its ancestors. Compare, Florida Wildlife Federation v. Department of Environmental Regulation, So.2d , 2 FALR 507J, Case No. 58,135 (Fla. November 6, 1980).

    
    

17. Petitioners have no standing, but that is not due to a lack of special injury. Standing does not appear because DNR has taken no action and does not propose taking any action which affects the substantial interests of any party. Section 120.57(1), Florida Statutes (1979).

    
    

18. The Department has rendered only a legal opinion. Neither the rights of Grove Isle, Ltd. nor those of the Petitioners have been changed by Mr. Meisen's letter of April 4, 1979, or by Mr. Dean's letter of March 24, 1980.

    
    

19. This is not a case where DNR proposes granting a deed, permit, lease, or easement to state lands. The Department here is giving nothing away to Grove Isle that Grove Isle could not have obtained from its own attorneys. Grove Isle may not now take the letters of Mr. Meisen or Mr. Dean down to the Dade County Courthouse and record them as an interest in land.

    
    

20. DNR's opinion on the applicability of Section 16C-12.14, Florida Administrative Code, requiring a lease for commercial docking facilities over sovereign submerged lands, to the instant marina is of even less significance than the binding letters at issue in Suwanne River Area Council v. Department of Community Affairs, 384 So.2d 1369 (Fla. 1st D.C.A. 1980) and Peterson v, Department of Community Affairs, So.2d , 2 FALR 387J, (Fla. 1st D.C.A. August 18, 1980). In those two cases objectors to the issuance of binding letters 6/ that planned projects were not developments of regional impact were denied standing because they had no substantial interest in the proceedings. A fortiori the Petitioners here have even less interest in the issuance of a mere legal opinion by DNR.

RECOMMENDATION

For the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That the Department of Natural Resources issue a final order dismissing the petitions in Case Nos. 80-670, 80-768, and 80-815.

DONE and RECOMMENDED this 11th day of December, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1980.

ENDNOTES

1/ Coconut Grove Civic Club, Tigertail Association, Inc., David A. and Carmen

T. Doheny, and Tropical Audubon Society, Inc.

2/ Mr. Jaffer's petition was mailed to DNR on March 25, 1980. For an unknown reason it bears a DOAH time stamp of March 31, 1980. The Petition was then forwarded to the DOAH from DNR on April 2, 1980.

3/ Much of the argument on the Motions To Dismiss rested on the contents of letters between DNR, Grove Isle, Ltd., and David A. Doheny. These letters were not then in evidence and therefore could not be given consideration at the Motion hearing.

4/ See Note 2.

5/ DOAH, Case No. 79-2186, 79-2324, 79-2354.

6/ Section 380.06(4)(a), Florida Statutes (1979).

COPIES FURNISHED:

DAVID A. DOHENY, ESQUIRE 1111 SOUTH BAYSHORE DRIVE MIAMI, FLORIDA 33131

HENRY DEAN, ESQUIRE DIVISION OF STATE LANDS

DEPARTMENT OF NATURAL RESOURCES 3900 COMMONWEALTH BOULEVARD

TALLAHASSEE, FLORIDA 32304

WILLIAM CLEARE FILER

3095 NORTHWEST 7TH STREET MIAMI, FLORIDA 33125

JOEL S. JAFFER

2479 SOUTHWEST 13TH STREET MIAMI, FLORIDA 33145

LARRY S. STEWART, ESQUIRE ONE BISCAYNE TOWER

TWENTY-FIFTH FLOOR MIAMI, FLORIDA 33131

KEN OERTEL, ESQUIRE OERTEL & LARAMORE, P.A.

646 LEWIS STATE BANK BUILDING TALLAHASSEE, FLORIDA 32301

================================================================= AGENCY FINAL ORDER

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES

BAYSHORE HOMEOWNERS ASSOCIATION,

INC., et al.,

Petitioners,

Respondents.

/

BY THE DEPARTMENT:

FINAL ORDER

I.

Introduction

On December 11, 1980, the duly appointed hearing officer in the above- styled matter submitted to the Department and all parties a Recommended Order, consisting of Findings of Fact, Conclusions of Law, and a Recommendation. A copy of said Recommended Order is attached hereto as Exhibit "A".

Pursuant to Section 28-5.404, Florida Administrative Code and Section 120.57(1)(b)(8), Florida Statutes, parties are allowed twenty (20) days in which to submit written exceptions to the Recommended Order. Petitioners, Bayshore Homeowners Association, Inc. and Joel Jaffer filed written exceptions to the hearing officer's Recommended Order. The Department and Grove Isle, Ltd. did not file exceptions to the hearing officer's Recommended Order.

II.

Discussion of the Division of Administrative Hearings' Hearing Oficer's Findings of Fact

In no instance has the hearing officer in this case resolved disputed issues by entering a factual finding that was shown to be unsupported by competent substantial evidence. Furthermore, the entire record of this case reveals that the proceedings have complied with the essential requirements of law, including all the applicable provisions of Chapter 120, Florida Statutes.

III.

Discussion of the Division of Administrative Hearings' Hearing Officers Conclusions of Law

The hearing officer's conclusions of law numbered one (1) and two (2) are accepted.

The hearing officer's conclusions of law numbered one (3) through six (6) are hereby rejected. These conclusions of law are contrary to the applicable law inasmuch as petitioner did demonstrate standing and must be allowed a point of entry into agency free-form proceedings.

The Board of Trustees hereby adopts the following paragraph as conclusion of law number three (3).

While the Board might agree with Petitioners that their position regarding "income and "riparian rights" is correct and that a lease should be required for the Grove Isle Marina, another recent APA case leaves us no choice but to follow the staffs interpretation of its rules. Miller v. Agrico, 383 So.2d 1137 (Fla 1st DCA 1980) stands for the proposition that when an agency has established a policy of general application, it may not change it absent distinguishing factors or rule promulgation. In Finding of Fact number seven (7), the hearing officer found that:

DNR has interpreted its rules relating to submerged land leases not to require a lease for the construction of a marina over submerged state lands if the marina will not generate a

regular income. Evidence of this practice dates back to June 8, 1978.

In sum, we have no choice.

IV.

Rulings on Exceptions to Recommended Order

The Petitioners' exceptions to the hearing officer's Recommended Order have been considered, and may be disposed of in brief fashion.

Petitioners, Bayshore Homeowners Association, Inc. Conconut Grove Civic Club, Carmen T. and David A. Doheny, Tigertail Association, Inc. and Tropical Audubon Society, Inc., submitted exceptions to the hearing officer's Recommended Order which, in essence, restated the arguments the Petitioner made in his post trial memorandum of law. The Petitioner has not demonstrated that the hearing officer's findings and conclusions on the issue of standing are unsupported by competent substantial evidence, so the hearing officer's determination must not be disturbed. The exceptions are hereby rejected.

Petitioner, Joel Jaffer, filed written exceptions to the hearing officer's recommended order. The gist of Mr. Jaffers exceptions are (1) that the hearing officer has erred in ruling that Mr. Jaffer was not capable of preserving the rights of the parties he sought to represent and therefore could not represent those parties and (2) that the other findings of fact determined by the hearing officer were in general irrelevant, inconsistent and not supported by evidence in the record. A review of the testimony at the hearing revealed the contrary. The hearing officer after evaluating all of the evidence and the demeanor of the witnesses, concluded to the contrary. Petitioner Jaffer has not shown that the hearing officer's findings and conclusions on these issues are unsupported by competent substantial evidence, so the hearing officer's determination must not be disturbed. The exceptions are hereby rejected.

V.

Conclusion and Order

Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, and the oral argument of counsel, it is therefore

ORDERED by the State of Florida Department of Natural Resources that no submerged land lease is required on the application of Grove Isle, Ltd.

DONE and ENTERED this 20 day of March, 1981, in Tallahassee, Florida.

BOB GRAHAM

Governor

FEOREGE FIRESIDE

Secretary of State

JIM SMITH

Attorney General

GERALD D. LEWIS

Comptroller

BILL GUNTER

Treasurer

RALPH D. TURLINGTON

Commissioner of Education

DOYLE CONNER

Commissioner of Agriculture

As and constituting the Board of Trustees of the Internal Improvement Trust Find of the State of Florida

Docket for Case No: 80-000670

Orders for Case No: 80-000670