STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN DAWSON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2237

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came before the undersigned on Respondent's Motion to Dismiss and Strike with prejudice, upon consideration, respondents motion is found to be meritorious, and the following recommended order is entered.

APPEARANCES

For Petitioner: Fred W. Van Vonno

Suite 1750, Courthouse Tower

44 West Flagler Street Miami, Florida 33130-1808

For Respondent: Charles G. Gardner

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 BACKGROUND AND PROCEDURAL MATTERS

This case began on April 12, 1988, when the Petitioner, Dan Dawson, filed a petition for formal proceedings with the Department of Transportation (Department), and alleged that Petitioner as well as other members of the general public have been adversely affected as a result of the erection of a fence at Haulover Bridge, which is located in Dade County, Florida. The fence had been erected on Property owned by the Department and Subject to a lease dated May 22, 1970, to the City of Bal Harbour. The fence allegedly restricted Petitioners long-standing use of the area for fishing purposes. It was Petitioner's position that the Department could not inhibit the use of the property (allow the fence) without a hearing on the issues. Petitioner maintained that the City was required to obtain a permit from the Department for the erection of the fence, and that the permit process necessarily allows input from individuals such as Petitioner. The Department alleged that, while the City was given a permit for the fence, no permit was required by law. The Department argued that its permission for the improvement was given pursuant to the lease.

The case was forwarded to the Division of Administrative Hearings for formal proceedings on May 3, 1988. The Department stated the issue to be:

Does Petitioner, Dan Dawson have standing to modify or nullify a lease between the Department of Transportation and the City of Bal Harbor (sic) for the use of the Agency's right of way resulting in the loss of the Petitioner's enjoyment of the area for fishing purposes.

Following the entry of an initial order, the Department filed a motion to dismiss which claimed that the Petitioner did not have standing to challenge the lease terms. On June 27, 1988, the parties offered oral argument on the motion to dismiss by telephone conference call. At that time, Petitioner acknowledged that this forum does not have jurisdiction to nullify or modify the lease between the Department and the City of Bal Harbour (City), but argued that, the lease notwithstanding, Petitioner has standing to challenge the erection of the fence. Following the conference call, the parties were given additional time within which to submit written argument or authority for their respective positions. Petitioner requested an extension of the time given in order to file a memorandum in opposition to the motion to dismiss. This extension was granted and Petitioner's memorandum was filed on August 12, 1988.

On September 12, 1988, an order was entered which granted the motion to dismiss for lack of standing and which gave the Petitioner fifteen days from the date of the order within which to file an amended petition. Further, this order concluded that the Division of Administrative Hearings does not have jurisdiction to order either the rescission or the modification of the lease between the Department and the City. Specifically, the order found that Petitioner had not alleged facts which showed an interest adversely affected which is different from chat of the general public and had not alleged a right to use the public property for the purposes expressed.

On October 3, 1988, Petitioner filed an amended petition for administrative determination and hearing. This amended petition claimed Petitioner's right to use the fenced off area for the purposes of fishing on public land is protected by Section 370.10, Florida Statutes, and Section 258.397(4)(a)(2), Florida Statutes. The amended petition also named Sportsmen's S.O.S., Inc., a not for profit corporation whose purpose is to preserve sportsmen's rights of access and use of their traditional sites for hunting, fishing, camping, hiking, boating, and other forms of outdoor recreation in the State of Florida and the preservation of such environments, as an additional petitioner whose substantial interests have been affected by the erection of the fence. The Petitioner alleged that the Department had apparently issued a permit to the City Pursuant to Section 337.40l, Florida Statutes.

On October 5, 1988, the Department filed a motion to dismiss and strike with prejudice the amended petition filed by Petitioned. This motion argued that the amended petition was not timely filed and failed to allege facts sufficient to establish standing. The Petitioner did not respond to the motion.

ISSUE

The central issue in this case is whether the amended petition alleges facts sufficient to establish standing and a legal basis for a hearing pursuant to 120.57, Florida Statutes.

FINDINGS OF FACT

For the purposes of this recommended order the following substantive facts alleged by Petitioner are deemed to accurate:

1. On May 22, 1970, the Department entered into a lease agreement with the City which, for the sum of one dollar per year, leased the right of way to the south approach to the Bakers Haulover Bridge located in Dade County, Florida. According to this lease, the property was to be used as a parking lot and remain open to all members of the motoring public.

   
   

2. The property leased to the City was, and is, adjacent to Biscayne Bay. This bay has been designated an aquatic preserve as defined in Section 258.39(11), Florida Statutes.

   
   

3. The Petitioner is a sport fisherman who for many years has utilized the public right of way leased to the City to gain access to fishing at Bakers Haulover Inlet.

   
   

4. On or about July 11, 1987, the City erected a fence on the right of way which blocked Petitioner's access to the water at Haulover Cut. The fence was erected without a permit from the Department.

   
   

5. On November 13, 1987, Petitioner and other members of the public, primarily fishermen, met with officials from the Department to complain about the fence and to attempt to reach a compromise. As a result, the City was to apply for an after the fact permit to erect the fence.

   
   

6. Petitioner and the other protesting fishermen believed they would be given an opportunity to review and comment upon the permit application. No notice was provided to Petitioner nor any other member of the group regarding the permit application. On December 1, 1987, the Department approved the City's permit for the erection of the fence.

   
   

7. Petitioner has not been given an opportunity to respond to the permit application submitted by the City.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these Proceedings.

   
   

9. Section 258.397(4)(a)2, Florida Statutes, requires the board of trustees of the Biscayne Bay Aquatic Preserve to adopt and enforce reasonable rules and regulations to regulate human activity within the preserve in such a manner as not to interfere unreasonably with lawful and traditional public uses of the preserve, such as fishing.

   
   

10. Section 370.10, Florida Statutes, specifies that all fish found within the bodies of water of this state are the property of the state and may be taken and used by its citizens and persons not citizens subject to the restrictions and reservations imposed by law.

    
    

11. Petitioner has relied on the sections of law noted above to support the notion that he has a legal right to gain access for the purpose of fishing from the right of way under lease to the City.

12. Petitioner has argued that the permit for the fence was apparently issued pursuant to Section 337.401, Florida Statutes. That section relates to the use of right of way for utilities purposes and does not apply to the facts of this case. There are no allegations that the City erected the fence, or required the fence, incidental to the location of utilities within the subject property. Petitioner has not cited a specific statutory reference authorizing a hearing pursuant to section 120.57, Florida Statutes.

    
    

13. Section 120.52(12)(b), Florida Statutes, defines "party" as:

    
    

    Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

14. Section 120.52(2), Florida Statute, defines "agency action" as: "Agency action" means the whole or part of a

    rule or order, or the equivalent, or the denial of a petition to adopt a rule or issue a order. The term also includes any denial of a request made under s. 120.54(5).

    
    

15. In the seminal case of Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), the court found:

    
    

    that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury

    is of a type or nature which the proceeding is designed to protect.

    
    

    Id. at 482.

    
    

16. Under the Agrico standard, the first test deals with the degree of injury; the second with the nature of the injury. A petitioner must show that the type of injury pled is of a nature that the proceedings were intended to protect. Further, and more specifically, in permitting proceedings, a claim of standing by third parties is not sufficient unless the permitting statute itself contemplates consideration of such interests. See Boca Raton Mausoleum, Inc. v. Department of Banking and Finance, Division of Finance 511 So.2d 1060 (Fla. 1st DCA 1987)

    
    

17. In the instant case, Petitioner has failed to allege injuries meeting either prong of the required tests. First, the section of law which Petitioner cited to require the city to obtain a permit does not relate to the facts of this case. Even if it were applicable, that law, Section 337.401, Florida Statutes, does not contemplate the interests of third parties nor does it afford such parties a protected zone of interest. Further, Petitioner has not alleged the Department has promulgated a rule which would provide the necessary nexus.

18. Secondly, Petitioner has not alleged an injury in fact. The injury alleged is, at best, the inconvenience of not being able to utilize the right of way for access for fishing. Petitioner has not alleged that his right to fish the Biscayne waters has been terminated, merely that he may not use his traditional access. The provisions cited by Petitioner provide that reasonable restrictions to fishing may be imposed. Petitioner does not have an unrestricted right to fish in locations and under the circumstances of his choice.

    
    

19. The Department's argument that the amended petition must be dismissed since it was untimely filed is rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Transportation enter a final order dismissing the amended petition filed by Dan Dawson.

DONE and RECOMMENDED this 19th day of December, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 19th day of December, 1988.

COPIES FURNISHED:

Fred W. Van Vonno

Suite 1750, Courthouse Tower

44 West Flagler Street Miami, Florida 33130-1808

Charles G. Gardner Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Attn: Eleanor F. Turner, Mail Station 58

Thomas H. Bateman, III General Counsel

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 88-002237

Orders for Case No: 88-002237