STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOLLY ROGER ESTATES PROPERTY ) OWNERS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-2716

)

CHARLES LOVERINO and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 3, 1984, in Key West, Florida.

Petitioner, Jolly Roger Estates Property Owners Association, Inc., was represented by Mr. Clare T. Carroll; Respondent, Charles Lovering, appeared on his own behalf; and Respondent, Department of Environmental Regulation, was represented by Douglas H. McLaughlin, Esquire, and James L. Torres, Certified Legal Intern, Tallahassee, Florida.

Respondent Lovering filed an application with the Department of Environmental Regulation (hereinafter "DER") for a permit to construct a 165- foot extension to his already existing wooden dock. Petitioner requested a formal hearing based on DER's letter of intent to issue the permit.

Respondent Lovering presented the testimony of Stanley. Becker, Sandra K. Barrett, Homer Rhode, Paul Moore, Brandy Pontin, Richard Lyons, John Welch, and Donald Woods. Additionally, Lovering's Exhibits numbered 1 - 8 were admitted in evidence.

DER presented the testimony of John Meyer and Richard W. Cantre1l. Additionally, DER's Exhibits numbered 1 - 3 were admitted in evidence.

Petitioner presented the testimony of Lee Desbien, Robert Wilson, Frank Royer, Ruth Royer, Edgar "Mike" Hunt, Elaine Garofalo, Pasquale Garofalo, and Wilson Henize. Additionally, Petitioner's Exhibits numbered 1 - 5 were admitted in evidence.

A proposed recommended order containing findings of fact was submitted by DER and considered in the preparation of this Recommended Order. When those findings of fact were consistent with the weight of the credible evidence introduced at the final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the

weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary have not been adopted.

FINDINGS OF FACT

1. Respondent Lovering submitted an application to DER to construct a 165- foot long by 6-foot wide extension to his present wooden dock. The extension will be part of a commercial marina. The area in question is part of the National Key Deer Refuge and is in Pine Channel, an Outstanding Florida Water.

   
   

2. The dock will run parallel to an existing canal which serves as the main entrance channel to Jolly Roger Estates, a subdivision which is currently being developed, and which possesses a network of dead end canals. The dock will be built on a shallow flat, some of which is exposed during low tide. Water quality within the Jolly Roger canal system is better than that found in most canal systems in the Keys. However, the water is too deep to support good bottom growth or adequate oxygen levels throughout the water column.

   
   

3. Benthic communities in the area of the proposed dock extension are made up of a variety of green, red, and brown, algaes, with a small amount of turtlegrass (Thallasia Testudinum), where sediments permit and where the communities are not completely exposed during low tide. No adverse impact on the water quality of the canal system or on Pine Channel will result from the construction of dock extension. The project is located at the mouth of the system where tidal flushing is best. Additionally, permit conditions prohibiting liveaboards and further prohibiting fueling or electrical facilities on the dock extension will prevent the location of additional potential pollution sources on the dock.

   
   

4. Differing opinions exist as to the width of the canal where the proposed extension will be placed, ranging from 56 feet to 70 feet. A certified survey admitted in evidence reveals the width to be 65 feet.

   
   

5. The proposed dock extension and the associated mooring of boats will not cause an unreasonable interference with navigation and will not be a navigational hazard. The experts agree that the proposed dock extension will improve piloting in the canal because it will clearly delineate the side of the channel. It is not unusual for boats to run aground while seeking the entrance into the canal.

   
   

6. Because the dock itself will be outside of the canal on the shoal, any narrowing of the canal will chiefly be due to boats being tied to the dock or moored in the canal. Conflicting testimony was heard regarding the presence of outcroppings on the walls of the canal opposite the proposed dock extension. Such outcroppings were not shown to measurably restrict the area available for navigation in the canal.

   
   

7. Any blocking of view caused by the proposed dock extension will be minor. The presence of the proposed dock extension and associated boats will not directly block the view of any across-canal property owners looking toward Pine Channel nor will they unreasonably interfere with persons wishing access to the flats.

   
   

8. Fecal coliform sampling done by DER in February 1982, revealed one violation of Water quality standards. That sample came from a dead end canal in

   Jolly Roger Estates, not from the location of the existing dock nor of the proposed dock which would be located at the opening of the main canal. There are currently approximately 50 homes on the canal using septic tanks. It is as reasonable to assume that the violation was caused by residential development on the canal system than by any liveaboards using Lovering's marina.

   
   

9. The width of the canal where the-existing dock is located is the same as the width of the canal where the proposed dock would be. The width of the dock in both locations would be the same. Witnesses who testified to the existence of outcroppings on the side of the canal opposite the location of the proposed dock also testified as to the existence of outcroppings on the side of the canal opposite the existing dock. Accordingly, that factor remains constant. Since the width of the existing dock and canal is the same as the width of the proposed dock and canal, no more restrictions to navigation will occur than already exist.

   
   

10. The evidence indicates that there may be more boat traffic congestion occurring more frequently in the subject canal. One witness counted 52 homes on the canal with 32 boats. Jolly Roger Estates is still being developed, and one realtor believes that the total development of Jolly Roger Estates will result in an additional 200 boats belonging to property owners in that subdivision. It is, therefore, likely that boat traffic will increase. However, the estimated 4 to 8 boats expected to be added to the marina as a result of the proposed dock extension is insignificant when compared to the traffic created by the present and current members of Petitioner.

    
    

11. The proposed dock extension will not be contrary to the public interest.

    
    

12. Pine Channel is a Class III surface water of the State.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

14. DER has jurisdiction over the construction of the proposed dock at this location pursuant to Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.

    
    

15. Lovering has provided DER with reasonable assurances that the proposed dock extension will not cause violation of state water quality standards nor will it substantially impede navigation in violation of Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, and the application complies with all other requirements of Chapters 253 and 403, Florida Statutes. The area in question is part of the National Key Deer Refuge, and Pine Channel is classified as an Outstanding Florida Water. The special requirements for such water bodies are contained in Section 17-4.242, which provides in pertinent part that the existing ambient water quality not be lowered as a result of the proposed activity. No evidence has been introduced that such would be the case. The existence of the proposed dock extension will have no effect on ambient water quality itself. Several members of Petitioner feel that the water quality will be affected by liveaboards using the marina facilities; however, DER's proposed permit conditions would prohibit liveaboards from utilizing the proposed dock extension. Whether liveaboards at the marina violate certain Monroe County ordinances as charged by Petitioner is not a

    matter within DER's permitting jurisdiction where liveaboards are prohibited at the proposed dock extension and no evidence was introduced to show an existing or likely degradation of water quality standards attributable to the proposed dock extension itself.

    
    

16. No evidence was introduced to show that the impact of the project on the navigable waters of the State will be contrary to the public interest in violation of Chapter 253, Florida Statutes, or Section 17-4.29, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the application of

Charles Lovering for a dock extension construction permit, subject to the condition that no liveaboard boats be permitted at the proposed facility, and further subject to the condition that no fueling or electrical or water facilities be located on the new dock.

THIS RECOMMENDED ORDER entered this 1st day of February, 1985, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1985.

COPIES FURNISHED:

Mr. Charles Lovering Route 4, Box 1038

Summerland Key, Florida 33042

Douglas H. MacLaughlin, Esquire Department of Environmental

Regulation

2600 Blair Stone Rd. Tallahassee, Florida 32301

Mr. Clare T. Carroll

Jolly Roger Estates Property Owners Association, Inc.

P. O. Box 145

Summerland Key, Florida 33042

Docket for Case No: 84-002716

Orders for Case No: 84-002716