STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF NATURAL RESOURCES ) and TRUSTEES OF INTERNAL )
IMPROVEMENT FUND, )
)
Petitioners, )
)
vs. ) CASE NO. 82-997
) FLORIDA EAST COAST PROPERTIES, ) INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on January 31 and February 1 and 2, 1983, in Miami, Florida.
APPEARANCES
For Petitioner: Lee R. Rohe, Esquire
Assistant Department Attorney Department of Natural Resources Marjorie Stoneman Douglas Building
3900 Commonwealth Boulevard, Suite 109 C
Tallahassee, Florida 32301
For Respondent: Clifford A. Shulman, Esquire and
Thomas K. Equels, Esquire Brickell Concours
1401 Brickell Avenue, PH-1 Miami, Florida 33131
Petitioner, State of Florida, Department of Natural Resources, and Board of Trustees of the Internal Improvement Trust Fund ("Petitioner"), issued a letter dated March 8, 1982, advising Respondent, Florida East Coast Properties, Inc. ("Respondent"), that the Department of Natural Resources would, at the April 20, 1982, meeting of the Board of Trustees far seek cancellation of certain submerged land leases previously issued to Respondent. In the letter, and through stipulations entered into between the parties in this proceeding, Petitioner has alleged that Respondent violated its leases, the Biscayne Bay Aquatic Preserve Act, and the Biscayne Bay Aquatic Preserve Rule by erecting a building on the end of a pier on property leased from the Board of Trustees. It should be noted that there are actually three leases involved in the marina belonging to Respondent, but the parties have stipulated that only that lease known as the "central lease" is at issue in this proceeding.
In response to the letter of March 8, 1982, Respondent filed a petition with the agency seeking a formal hearing pursuant to the provisions of Section
120.57(1), Florida Statutes. Specifically, Respondent contends that its lease has not been violated, and that the lease contemplated the construction of the building or service pavilion at the end of the dock occupying the leased submerged lands in Biscayne Bay, Dade County.
This cause was consolidated for final hearing with the cause styled State of Florida, Department of Environmental Regulation v. Florida East Coast Properties, Inc., D.0.A.H. Case No. 82-1640. In that case, the Department of Environmental Regulation seeks to have Respondent required to remove the building constructed on the central dock and to recover certain costs pursuant to the agency's investigation of the alleged violation. Consolidation of these two causes was solely for purposes of final hearing, however, and separate Recommended orders are being submitted to the agency heads in each cause.
At the final hearing, Petitioners called Les Rybak, R. J. Strickland, and Ted Forsgren as its witnesses. Petitioners offered DNR Exhibits 1 through 8, which were received into evidence. Respondent called Tibor Hollo, Spencer Meredith, Frederic Blitstein, Tarek Khalil, and Daniel Meisen as its witnesses. Respondent offered FEC Exhibits 1 through 40, 51 through 54, and 58 through 70, which were received into evidence. Additionally, Hearing Officer's Exhibits 1 through 8 and Joint Exhibits 1 through 3 were received into evidence. The following members of the public were allowed to testify at the final hearing: Marilyn Reed, Minette Benson, Janet Cooper, Nancy Brown, and George Reed.
At the conclusion of the final hearing, counsel for DER and DNR stipulated that all exhibits from the consolidated hearing would be forwarded to DER with the Recommended Order in Case No. 82-1640. Accordingly, all hearing exhibits accompany that order, and the ultimate distribution of the exhibits will be determined by DER and DNR.
Counsel for all parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
FINDINGS OF FACT
Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, just north of the Venetian Causeway. Respondent has constructed the marina on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund, acting through the Department of Natural Resources. The submerged lands which are the subject of the lease in question in this proceeding are sovereignty lands lying within the Biscayne Bay Aquatic Preserve as defined in Section 258.165(2)(a) , Florida Statutes, and in Chapter l6Q-18, Florida Administrative Code. Chapter l6Q-18 became effective March 20, 1980.
In 1976 and 1977 Respondent received permits from the State of Florida, Department of Environmental Regulation, and the Army Cords of Engineers for two "J" shaped main docks, one 700 feet long and the other 500 feet long, roughly forming a half circle extending about 450 feet from the shore. The permits also authorized the construction of two 280-foot long "T" shaped docks within the semicircle, one on each side of the central dock and fueling facility which is the subject matter of this proceeding. on October 27, 1977, DER issued Permit No. l3-30-0740-6E to Respondent, authorizing the construction of the central dock and fueling facility.
On August 18, 1977, Respondent applied to the Board of Trustees and DNR for the lease in controversy. The letter and enclosures indicated the area to be leased would encompass 38,268 square feet of bay bottom. The applicant's letter makes reference to a "docking and fueling facility," while the legal description submitted with the application is captioned "Omni Marina Phase II and Fueling Dock." The plan-view drawings and cross-sectional views of the pier which Respondent filed with DER and which were in turn furnished to DNR show a platform at the end of the central pier labeled with the words "FUEL," but do not show any building associated with the pier. A cross-sectional view of the platform alone was neither provided by Respondent nor requested by either DER or DNR.
Notwithstanding this fact, however, during the course of DNR review of the lease application, Respondent advised DNR officials of its intention to place some structure on the platform at the terminus of the central pier to serve as a "fueling station." DNR personnel in charge of the application evaluation in fact conducted in-house discussions concerning the agency's interpretation of what would constitute a "fueling facility." These DNR officials in fact knew that Respondent intended to erect a structure on the platform of the central pier to serve as a fueling facility. Despite this knowledge, DNR officials did not request additional information relating specifically to the character of any structure which Respondent intended to erect on the platform at the end of the central pier for reasons hereinafter set forth.
The Board of Trustees of the Internal Improvement Trust Fund met on March 23, 1978, and approved Respondent's lease application The minutes of that meeting state that:
This facility is consistent with existing usage and does not unreasonably interfere with lawful and traditional public use of-the Preserve and is in compliance with Section 258.165,
Florida Statutes.
As a result of the Board approval, a lease was issued and duly executed allowing Respondent ". . . to operate exclusively a fueling facility upon sovereignty lands. . . ." Respondent was granted a lease term of five years commencing March 21, 1978.
At the time the lease in question was approved, neither the lease itself nor any rule, statute, or agency practice defined the term "fueling facility." There were, in fact, no rules adopted by the Board of Trustees or DNR in existence on March 23, 1978, governing the leasing of sovereignty submerged lands. Instead, DNR and the Board of Trustees employed former Rule 18-2.22, Florida Administrative Code, as a policy guide in processing submerged land lease applications. Under the Florida Administrative Procedure Act, the provisions of Chapter 18-2, Florida Administrative Code, had become null and void as of October 1, 1975, by virtue of the failure of the Board of Trustees and DNR to readopt those rules in accordance with Chapter 120, Florida Statutes. Even Chapter 18-2, Florida Administrative Code, however, failed to define "fueling facility," "marina," or "commercial docking facilities," all of which terms appear in the disputed lease issued to Respondent. Former Rule 18-2.164, Florida Administrative Code, contains licensing requirements for marinas, including furnishing construction drawings of proposed structures and complying
with the requirements of that rule in the event any structural modifications occur. The record in this cause establishes, however, that DNR, at the time the lease in controversy was issued, did not uniformly apply the "policy guide" contained in former Rule 18-2.164, Florida Administrative Code. In fact, it appears that prior to the promulgation of the Biscayne Bay Aquatic Preserve rule, Chapter 16Q-18, Florida Administrative Code, on March 20, 1980, DNR's policy in the leasing of sovereignty submerged lands was to concern itself only with the amount of state land that a proposed use would require. In this connection DNR and the Board of Trustees were not concerned with the design of structures to be placed on leased sovereignty submerged lands, but were concerned only with maintaining the (integrity of lease boundaries. After December 20, 1978, DNR expressed this policy as a rule, exempting the modification of existing structures from lease modification requirements so long as the structural modification did not require ". . . the use of any additional sovereignty submerged lands." Rule 16Q-17.14(1)(j) , Florida Administrative Code.
At the time of the issuance of the lease here in question, Respondent did not know the exact nature, size, or height of any structure that it might wish ultimately to build on the central platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings submitted to DER, and in turn forwarded to DNR by DER.
On January 11, 1979, approximately fourteen months after issuance of the DER permit and less than one year after issuance of the lease here in question, Respondent furnished a copy of the floor plan of the proposed building on the central pier to DER. This floor plan indicated areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan was a storage area for electric carts to be used in servicing vessels utilizing the marina facilities.
On April 20, 1979, the City of Miami issued a valid building permit for construction of the marina fueling station. Respondent notified DER and DNR in July of 1979 that it intended to begin construction of the marina shortly thereafter. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 25, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981.
Prior to construction of the fueling platform and building, but after completion of the central lease pier, DNR made an annual inspection of the marina on February 16, 1981. During this inspection, the central lease dock was checked and found to be in compliance with the Biscayne Bay Aquatic Preserve Act.
In December of 1981, DNR learned that Respondent had constructed a building on the platform at the end of the central pier through receipt of a copy of a DER warning notice issued to Respondent. DNR then sent a letter to Respondent on January 29, 1982, advising Respondent to revise its plans and locate the building on the uplands since the building as constructed might be in violation of Section 258.165, Florida Statutes, commonly referred to as the Biscayne Bay Aquatic Preserve Act. Correspondence then ensued between DNR and Respondent culminating in a March 8, 1982, letter from DNR advising Respondent of DNR's intent to seek cancellation of the lease for the central pier at an April 20, 1982, meeting of the Board of Trustees.
The following day, on March 9, 1982, an inspection was made of the central lease facility. The building constructed on the platform at the end of the central pier has a floor area of approximately 3,800 square feet, and a roof area of approximately 5,292 square feet. The building was constructed at a cost of approximately $500,000. The net area of the platform at the end of the central pier contains about 9,640 square feet. The height of the structure is approximately 18 to 20 feet, and it is situated over the water approximately 400 feet east of the bulkhead. The interior of the building has been divided into six rooms, and no fuel pumps were found on the leased area on March 9, 1982. Construction of the building was halted before it could be completed or put into use.
The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant' room with cash register and equipment for fuel pumps. In addition, the structure contains bathroom facilities for boat owners and passengers and employees, and shower facilities for marina employees. All of these uses are customarily associated with the operation of marina facilities.
Construction of the fueling station at the end of the central pier did not require the use of any sovereignty submerged lands in addition to those encompassed within the existing lease. Further, construction of the building did not require additional dredging or filling nor did it result in any significant adverse environmental impact.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1) , Florida Statutes.
Section 120.52(7) , Florida Statutes, defines "license" as ". . . a franchise, permit, certification, registration, charter, or similar form of authorization required by law . . . "It is concluded, as a matter of law, that the sovereignty submerged land lease issued to Respondent in this proceeding constitutes a "license" within the meaning of Section 120.52(7), quoted above.
Section 120.60(2), Florida Statutes, provides, in part, as follows:
When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges
of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency
is permitted by law to require.
Failure to correct an error or omission or to supply additional information shall not be grounds for denial
of the license unless the agency
timely notified the applicant within this 30 day period. The agency shall notify the applicant if the activity for which he seeks a license is exempt from the licensing requirement
. . . . Each agency, upon issuing a license, shall state with particularity the grounds or basis
for the issuance . . . of same. . . (Emphasis added.)
Respondent has moved to dismiss and/or strike this proceeding for failure to comply with the provisions of Section 120.60(6) , Florida Statutes. That motion is without merit and is hereby denied. See, Bruner v. Board of Real Estate, 409 So.2d 146 (Fla. 5 DCA 1982)
Section 258.165(3) , Florida Statutes, provides, in part, as follows: The Board of Trustees of the
Internal Improvement Trust Fund is
authorized and directed to maintain the [Biscayne Bay Aquatic Preserve] hereby created pursuant and subject to the following provisions:
(b) No further dredging or filling of submerged lands of the preserve shall be approved or tolerated by board of trustees except:
3. Such minimum dredging and filling as may be authorized for the creation and maintenance of marinas, piers, and docks. . . Such projects may only
be authorized upon a specific finding by the board of trustees that there is assurance that the project will be constructed and operated in a manner that will not adversely affect the water quality of the preserve.
(c) There shall be no . . . erection of structures other than docks within the preserve unless such activity is associated with activity authorized by this section.
At all times material to this proceeding Respondent possessed valid permits and leases which allowed for the construction of a marina and an associated "fueling facility." As mentioned above, no statute, rule, or agency policy in existence at the time of the issuance of the lease for the central pier defined the term "fueling facility." The record in this cause affirmatively establishes, however, that DNR personnel in charge of processing the lease application for the central pier were aware prior to the issuance of the lease that some structure was contemplated on the platform at the end of the central pier. Notwithstanding this knowledge, DNP chose neither to request additional information concerning the character of that structure nor to condition the issuance of the lease upon Respondent's later submission of construction drawings for DNR or Board of Trustees approval. The failure to request this information was consistent with the agency's policy in force at the time the
lease was issued to concern itself only with ensuring that leasehold improvements were within the boundaries of the property leased, and to not concern itself with the design of structures to be placed thereon. It is clear that the agency's policy has changed drastically since this lease was issued.
Chapter 16Q-18, Florida Administrative Code, which became effective on March 20, 1950, has established much more stringent standards for the review and issuance of leases of sovereignty submerged lands. However, pursuant to Rule 16Q- 18.03(2) Florida Administrative Code, those rules:
are prospective in their application and shall not apply to activities for which applications have been submitted to the Trustees . . . prior to February 22, 1950;
and shall not affect previous actions to [sic] the Trustees concerning the issuance . . . of
any . . . lease . . . concerning sovereign lands.
Accordingly, it is concluded as a matter of law, that the requirements of Chapter 16Q-18, Florida Administrative Code, are not applicable in this proceeding.
In administrative proceedings, the law of Florida is clear that the party asserting the affirmative of an issue bears the burden of proving its allegations by a preponderance of the evidence. Agrico Chemical Co. v. State,
365 So.2d 759 (Fla. 1st DCA 1978); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) In this case, since DNR and the Board of Trustees are attempting to cancel the lease for the central pier, they bear the burden of establishing a violation of that lease sufficient to merit cancellation. In this regard, it was held in Bowling v. Department of Insurance, 394 So.2d, 165, 171-172 (Fla. 1st DCA 1981) that there exists:
a requirement for more substantial evidence from the very nature of license discipline proceedings; when the standards of conduct to be enforced are not explicitly statute or by rule . . .; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceeding may result in the loss of a valuable license, critical matters in issue must be shown by
evidence which is indubitably as `substantial' as the consequences . . . .
Under the lease in question Respondent was authorized to construct and operate a "fueling facility," in conjunction with the Plaza Venetia Marina. The building, as constructed, with its proposed attendant uses constitutes activity associated with the creation and maintenance of a marina within the intent and meaning of Section 258.165(3)(b) and (c) , Florida Statutes. Accordingly, it is concluded, as a matter of law, that Petitioners have failed, under the circumstances of this case, to establish that the construction on the platform at the end of the center pier constitutes a violation of either Section 258.165(3), Florida Statutes, the permit itself, or any existing agency policy in effect at the time the lease was issued.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund dismissing this cause, and denying the relief requested against Respondent.
DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983.
COPIES FURNISHED:
Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Clifford A. Shulman, Esquire
and
Thomas K. Equels, Esquire Brickell Concours
1401 Brickell Avenue, PH-1 Miami, Florida 33131
Victoria Tschinkel, Secretary Department of Environmental
Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Lee Rohe, Esquire
Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32303
Elton Gissendanner, Director Department of Natural Resources Executive Suite
3900 Commonwealth Boulevard
Tallahassee, Florida 32303
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF NATURAL RESOURCE and TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,
Petitioners,
vs. CASE NO. 82-997
FLORIDA EAST COAST PROPERTIES, INC.,
Respondent.
/
FINAL ORDER
On June 6, 1983, the duly appointed hearing officer in the above-styled matter submitted to the Department and Florida East Coast Properties, Inc., a Recommended Order consisting of findings of facts, conclusions of law and a recommendation for final agency action. A copy of the Recommended Order is attached as Exhibit "A".
Pursuant to Section 129.57(1)(b)(8), Florida Statutes, a party is allowed at least ten days to submit written exceptions to the Recommended Order. Under Chapter 18-7.01, Florida Administrative Code, a party is entitled to submit written exceptions within twenty-five (25) days of when a recommended order is served. On June 24, FEC served its "Exceptions to Recommended Order". A copy of FEC's "Exceptions" is attached hereto as Exhibit "B". The first page of FEC's "Exceptions" states:
Florida East Coast Properties, Inc., concurs with the Recommended Order filed
in this cause by Hearing Officer William E. Williams on June 3, 1983, and believes that the Recommended Order is both complete and sufficient, fully supported by the Record and adequately resolving the issues in this dispute."
Accordingly, since FEC's "Exceptions" do not take issue with the Recommended Order, it is hereby found, under the authority of Chapter 28- 5.405(3), Florida Administrative Code, that FEC's "Exceptions to Recommended Order" are irrelevant and immaterial.
The Recommended Order came before the Board of Trustees for final agency action on July 19, 1983, after consideration of the entire record including the hearing transcript, exhibits admitted into evidence, all pleadings and the oral arguments of counsel.
INTRODUCTION
An administrative hearing was held before William E. Williams, Hearing Officer, Division of Administrative Hearings, on January 31, and February 1 and 2, 1983, in Miami, Florida. Due to similar issues of fact and law, this cause was consolidated for a hearing with that case styled as Department of Environmental Regulation vs. Florida East Coast Properties, Inc., Case No. 82- 1640, pursuant to Chapter 28-5.106, Florida Administrative Code.
APPEARANCES
For Petitioner: Lee R. Rohe, Esquire
Assistant General Counsel Department of Natural Resources Suite 1009C, Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32303
For Respondent: Clifford A. Schulman, Esquire and
Thomas K. Equels, Esquire
Greenberg, Trauig, Askew & Hoffman, P.A. 1401 Brickell Avenue
Penthouse 1
Miami, Florida 33131 FINDINGS OF FACT
Section l2O.57(1)(b)(9), Florida Statutes, prohibits an agency from rejecting or modifying a hearing officer's Findings of Fact unless it can be determined, after a review of the complete record, that the findings are not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
The Board of Trustees and the Department recognize that the hearing officer's findings should be afforded considerable weight. The hearing officer is the trier of fact who is best able to evaluate the credibility of witnesses and resolve conflicting testimony. Moreover, courts have cautioned agencies against making a new judgment upon the evidence. Koltay vs. Department of Business Regulation, 374 So.2d 1386 (Fla. 2nd DCA 1979); Borovina vs. Florida Construction Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA 1979).
ACCORDINGLY, IT IS HEREBY ORDERED that the Findings of Fact as found by the Hearing Officer in the attached Recommended Order be herein adopted. in toto.
CONCLUSIONS OF LAW
Section 120.57(1)(b)(9), Florida Statutes, allows an agency to reject or modify the conclusions of law and interpretation of administrative rules in the recommended order.
ACCORDINGLY IT IS HEREBY ORDERED that those Conclusions of Law numbered a Paragraphs One, Four, Five, Six, Seven and Eight are adopted as per the attached Hearing Officer's Recommended Order.
IT IS FURTHER ORDERED that the Conclusions of Law contained within Paragraphs Two and Three are expressly rejected on the grounds that a lease of submerged, sovereignty lands does not constitute a "license or similar form of authorization" within the meaning of Section 120.52(7), Florida Statutes, nor do the requirements of Section 120.60(2), Florida Statutes, apply to the handling, grant or denial of applications for sovereignty, submerged land leases.
The hearing officer's Recommended Order states, under Paragraph Two of the Conclusions of Law, that:
"Section 120.52(7), Florida Statutes, defines 'license'
as '. . . a franchise, permit, certification, registration, charter, or similar form of authorization required
by law. . . .` It is concluded, as a matter of law, that the sovereignty submerged land lease issued to Respondent in this proceeding constitutes a `license' within the meaning of Section 120.52(7), quoted above."
In accordance with Section 120.57(b)(9), Florida Statutes and Chapter 18- 7.03, Florida Administrative Code, the Trustees may reject or modify conclusions of law and interpretations of administrative rules contained in the recommended order, but, in such event, shall separately state with particularity in the final order the specific legal authority upon which each such modification or rejection is based.
The hearing officer's conclusion that the lease issued by the Board of Trustees constitutes a "license" or "similar form of authorization" under the meaning of Section 120.52(7) is hereby rejected as a misinterpretation of Section 120.52(7) for the following reasons:
A sovereignty submerged lands lease is issued by the Board of Trustees in the exercise of its proprietary powers. In Hayes vs. Bowman, 91 So.2d 795 (Fla. 1957), the Florida Supreme Court described the State's title to sovereign lands on page 795 as follows:
"In our democracy the State's title is in the nature of the sovereign proprietorship as it existed at common law."
A lease of sovereign lands is not similar to a license, franchise, permit, certification, registration or charter as defined within the context of Section 120.52(7). The Florida Supreme Court has defined the word "license" as:
". . . merely a privilege to do business and is not a contract between the authority granting it and the grantee, nor is it a property right, nor does
it create a vested right." Mayo vs. Market Fruit Co. of Sanford, 40 So.2d 555, 559 (Fla. 1944).
The lease issued to Florida East Coast Properties, Inc., meets all the criteria enunciated in Bodden vs. Carbonell, 354 So.2d 927 (Fla. 2nd DCA 1978) for the determination of whether or not the relationship between Petitioner and Respondent constitutes that of landlord and tenant. At page 929, the Bodden Court stated, in holding that an instrument was a lease and not a license in real property that:
". . . periodic rent was to be paid on the premises, the agreement was for a definite term of years, and the agreement was referred to as a lease. In addition, in
the instant case appellant had exclusive possession of a particularly described area . . . and the parties to the agreement clearly intended to enter into a lease."
The document issued to Respondent is entitled "Sovereignty Submerged Lands Lease." The area of bay bottom granted to Respondent is particularly described by a metes and bounds description. The Respondent and Board of Trustees signed the lease as "Lessee" and "Lessor" respectively. A five-year term was fixed and the lease fee was calculated on the basis of the number of square feet of bay bottom encompassed by the legal description. Further, the Respondent had a possessory interest in the leased area to the exclusion of all others.
From the foregoing, it is clear that the document in this cause is a lease of real property and cannot be confused with a license in real property which would merely grant a privilege to someone for the purpose of entering the lands of another to fulfill some specific purpose. Moreover, it is also clear that the term "license" as used in Section 120.52(7) does not mean a license in real property but rather a license of the kind issued by regulatory agencies responsible for the regulation and control of certain occupations, businesses, industries or activities which affect the health, welfare and safety of the citizens. Appropriate subjects for police power regulation do not include the disposition of sovereign lands but instead are such matters as public health, morals, welfare, safety and financial or economic safety. 10 Fla. Jur. 2d Constitutional Law Section 224.
The "license" or "similar form of authorization" referred to in Section 120.52(7) means a license issued by government under its police power authority. The Florida Legislature does not consider the Board of Trustees to possess police power with regard to sovereign lands. Section 10 of Chapter 75-22, Laws of Florida, (1975 Reorganization Act) transferred the police power or regulatory power of the Board of Trustees to the Department of Environmental Regulation.
In 1976, the Legislature enacted Section 253.77, Florida Statutes, which also gave evidence of legislative intent concerning the distinction between proprietary authority of the Board of Trustees versus police power authority of DER. Subsection One states, in pertinent part, that:
"No department . . . possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving
the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees under Chapter 253, until the applicant for such permit shall have received from the Board of Trustees of the
Internal Improvement Trust Fund the required lease and exhibited it to such department . . . having regulatory power [Emphasis supplied]
The hearing officer's Recommended Order states, under Paragraph Three of the Conclusions of Law, that Section 120.60(2) applies to a lease since a lease is a "license" or "similar form of authorization" under 120.52(7). Accordingly, the Recommended Order concludes, as a matter of law, that the requirements of Section 120.60(2), including the 30-day and 90-day requirements, apply to the Board's handling of lease applications and the grant or denial of sovereignty land leases.
Pursuant to the requirements of Section 120.57(b)(9), Florida Statutes and Chapter 18-7.03, Florida Administrative Code, the Conclusion of Law in Paragraph Three of the Recommended Order is hereby expressly rejected for the following reasons:
As noted above, a lease of submerged sovereignty lands is not a "license" or "similar form of authorization" within the meaning of Section 120.52(7).
The Board of Trustees is responsible for the management and disposition of sovereign lands under the Trust Doctrine. There exists no such regulatory or statutory scheme for the issuance of sovereign leases. The Board, under the Trust Doctrine, must be afforded considerable latitude and discretion in the exercise of its fiduciary responsibilities. Hayes v. Bowman, 91 So.2d 795, 800 (Fla. 1957).
Before the Trust Doctrine was given constitutional dimensions in 1968, the doctrine had first received judicial recognition in Florida under State v.
Blackriver Phosphate Co., 13 So. 640 (Fla. 1893). Blackriver Phosphate, in turn, traced the ancient common law origins of the Trust Doctrine to England.
Since Blackriver Phosphate, supra, the courts repeatedly reaffirmed the doctrine down through the years. Broward v. Mabry, 50 So. 826 (Fla. 1909); Martin v. Busch, 112 So.274 (Fla. 1927); Deering v. Martin, 116 So. 54 (F1a. 1928); Perky Properties, Inc. v. Fe1ton, 151 So. 892 (Fla. 1934); Hayes v.
Bowman, 91 So.2d 795 (Fla. 1957); Bryant v. Lovett, 201 So.2d 720 (Fla. 1967).
The authority to administer sovereign lands is also derived from organic law. Florida's Constitution, Article 10, Section 11, states that:
"The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest." [Emphasis supplied]
The authority to control sovereignty lands has also been described by the courts as an "inherent" authority or one which needs no statutory basis. In the case of State vs. Florida National Properties, Inc., 338 So.2d 13 (Fla. 1976), Justice Boyd observed on page 18 that:
"In our view, right of control over sovereignty lands is so inherent in the state that we feel such control can be exercised with or without specific statutory provisions.
In stark contrast to the Florida National Properties case which characterized the authority of the Board of Trustees as "inherent," is the case of Department of Environmental Regulation vs. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1982).
Falls Chase, a case involving the regulation of privately owned submerged lands, held that a regulatory agency is held in strict compliance with its enabling statute. At page 793, Judge Booth wrote that:
"An agency has only such power as expressly or by necessary implication is granted by legislative
enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in, for example, a court of general jurisdiction." [Emphasis supplied)
For the Board of Trustees to be held to the rigid statutory requirements of regulatory agencies and the constraints imposed by Section 120.60(2) would, in effect, abrogate the broad fiduciary trust placed with the Board in the management of sovereign lands. When Article 10, Section 11 of the Florida Constitution was adopted as part of the 1968 Constitution, it gave constitutional dimensions to the common law doctrine applicable in the state that the beds of navigable waters are held in trust for the people. Weller vs. Askew, 363 So.2d 1091, 1094 (Fla. 1978).
Without broad discretion, the Board of Trustees would be left to issuing leases to any applicant who satisfies the letter of 120.60(2) and applicable administrative rules. Public policy militates against indiscriminate giveaways of the tidal and submerged lands of the state and the uses thereof where there are absent, appropriate reservations, compensation, or consideration. Bryant vs. Lovett, 201 So.2d 720, 724 (Fla. 1967).
The importance of the judgment of the Board of Trustees in the disposition of sovereign lands is nowhere else so clearly expressed as in Hayes vs. Bowman, 91 So.2d 795 (Fla. 1957) at page 800:
"This power of the state to dispose of submerged tidal lands has assumed important proportions in recent
years. Valuable subdivisions have been built on dredged-in fill. Large areas have been leased to those who would speculate in drilling for oil. Increased interest in this type of land bears foreboding of even more complex
problems in the future. These lands constitute tremendously valuable assets. Like any other fiduciary asset,
however, they must be administered with due regard to the limitations of the trust with which they are impressed." [Emphasis supplied]
It is concluded, as a matter of law, that to impose the requirements of Section 120.60(2) by defining a sovereignty lease as a "license" would result in an invalid application of Section 120.60(2) to the Board of Trustees because
such an application would be in derogation of or constrict the Trust Doctrine and the rights of the people in sovereign lands as secured by organic law.
A statute may not constrict a right granted under the ultimate authority of the Constitution. Statutes should not be construed in a way which will lead to untenable conclusions. Austin vs. State Ex Rel. Christian, 310 So.2d 289 (Fla. 1975).
The application of a statute in a particular case may violate organic law, but the statute as framed may not be unconstitutional when properly applied.
State vs. Doss, 192 So. 870 (Fla. 1940).
WHEREFORE, based upon the above Findings of Fact and Conclusions of Law, the entire record including the hearing transcript, exhibits admitted into evidence, all pleadings and the oral arguments-of counsel, it is therefore,
ORDERED, by the Board of Trustees of the Internal Improvement Trust Fund and the Department of Natural Resources, State of Florida, that this cause be dismissed.
DONE AND ORDERED this 2nd day of August, 1983.
STATE OF FLORIDA
DEPARTMENT OF NATURAL RESOURCES
Department Clerk Dr. Elton J. Gissendanner Executive Director
(SEAL) APPROVED AS TO FORM AND LEGALITY
Copies Furnished to:
Clifford A. Schulman, Esquire Greenberg, Trauig, Askew & Hoffman, P.A. 1401 Brickell Avenue
Penthouse 1
Miami, Florida 33131
Mr. William E. WIlliams, Hearing Officer Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 09, 1983 | Final Order filed. |
| Jun. 03, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 02, 1983 | Agency Final Order | |
| Jun. 03, 1983 | Recommended Order | Dismiss petition. Respondent had permit to construct fueling facility in conjunction with the marina. |
