STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. PETERS, )

)

Petitioner, )

vs. ) CASE NO. 88-4387

) DEPARTMENT OF NATURAL ) RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 24, 1989, at Fort Myers, Florida, before Veronica D. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Thomas B. Hart, Esquire

Smoot, Adams, Johnson & Green, P.A. Post Office Drawer DD

Fort Myers, Florida 33902

For Respondent: Harold McLean, Esquire

Deputy General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

On July 20, 1988, the Petitioner filed a request for an administrative hearing to contest the decision of the Respondent, Department of Natural Resources (hereinafter the Department), to withdraw its permission regarding his use of the state-owned submerged lands adjacent to his property. The Petitioner needs a consent of use from the Department in order to construct and extend his single residential dock by seventy-six feet.

During the hearing, the Petitioner presented five witnesses and introduced ten exhibits, which were admitted into evidence. The Department called one witness and submitted one exhibit, which was received into evidence. A transcript of the proceedings was not ordered. Proposed Recommended Orders were filed by both parties. Rulings on the proposed findings of fact are in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet.

2. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies.

   
   

3. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes.

   
   

4. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department.

   
   

5. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following:

   
   

   1. The proposed extension would disrupt historical patterns of localized navigation.

   2. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal.

   3. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area.

      
      

6. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area.

   
   

7. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks.

   
   

8. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

10. Under Article II, Section 7 and Article X, Section 11, of the Florida Constitution, sovereignty submerged lands are held in trust for the use and benefit of all the people of this State by the Board of Trustees of the Internal Improvement Trust Fund (hereinafter the Board).

    
    

11. The Board has been authorized by the legislature to administer the State's sovereignty lands, and has been directed to adopt rules and regulations governing the exercise of its statutory duties. Section 253.03(7), Florida Statutes. The rules adopted by the Board which govern the management of

    sovereignty submerged lands are contained in Chapter 18-21, Florida Administrative Code.

    
    

12. The Department of Natural Resources, Division of State Lands, is empowered to perform all staff duties and functions related to the administration of the submerged lands held by the Board. Section 253.002, Florida Statutes.

    
    

13. Rule 18-21.005, Florida Administrative Code, provides that all activities, such as the construction of docks, shall require a lease, easement, consent of use, use agreement or other form of approval. A single dock, which is no more than the minimum length necessary to provide reasonable access to navigable water, is granted consent by the Board when the dock is exempt from the Department of Environmental Regulation permitting requirements under Section 403.813(2)(a-e),(g-i) and (k), Florida Statutes. Under such circumstances, when the activity is not located in an Aquatic Preserve or Manatee Sanctuary, the activity is exempted from any requirement to make application for consent of use, and the consent is automatically granted by the Board. Based upon the evidence adduced at hearing, the Petitioner's construction activity and proposed use of the submerged lands for the planned dock extension meet the requirements for the automatic grant of consent of use.

    
    

14. Under the facts of this case, a consent of use was granted to the Petitioner by the Department, pursuant to Section 253.77, Florida Statutes, on December 29, 1987. The reasons given by the Department on June 6, 1988, for its decision to withdraw its consent of use are not a basis for the revocation of a previously issued consent of use. The Department's attempt to withdraw its previous consent by the use of a letter which ignores its prior consent, and claims it is "unable to authorize the proposed project", is misleading and contravenes the requirements of the Florida Administrative Procedure Act.

    
    

15. The Department's letter of June 6, 1988, did not lawfully revoke the consent of use. No statute or rule authorizes the Department to revoke a consent of use granted by the Board. There are no legislative or regulatory standards setting forth the basis upon which a consent of use may be revoked. Boar6 of Trustees of Internal Improvement Fund v. Barnett, 533 So.2d 1202 (Fla. 3d DCA 1988).

    
    

16. The reasons given by the Department for the withdrawal of its consent of use are insufficient as a matter of law. An administrative agency may not revoke a license or permit for some cause not clearly within the ambit of its statutory authority. Federgo Discount Center v. Department of Professional Regulation, 452 So.2d 1063 (Fla. 3d DCA 1984); Davis v. Department of Professional Regulation, 457 So.2d 1074 (Fla. 1st DCA 1984); Cohn v. Department of professional Regulation, 477 So.2d 1039 (Fla. 3rd DCA 1985); Lewis v. Criminal Justice standards and Training Commission, 462 So.2d 528 (Fla. 1st DCA 1985). The first reason given was contrary to the evidence presented at hearing. The second and third reasons stated are not set forth in the specific standards and criteria adopted by the Board regarding the siting of docking facilities on sovereignty submerged lands in Rule 18- 21.004, Florida Administrative Code. Without a lawful basis for revoking the consent of use, the revocation is illegal and of no force or effect. The Department, like the Board, is bound by the rules located in Chapter 18-21, Florida Administrative Code. Decarion et al. v. Martinez et. al. First D.C.A. 11 F.A.L.R. 903 (1989). Until amended or abrogated, an agency must honor its rules. Gadsen State Bank

1. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977)

   Based upon the foregoing, it is RECOMMENDED:

   
   

   That the Department's December 29, 1987 approval to the Petitioner to extend the dock as planned, be reinstated.

   
   

   DONE AND ENTERED this 17th day of May, 1989, at Tallahassee, Florida.

   
   

   VERONICA D. DONNELLY, Hearing Officer Division of Administrative Hearings The DeSoto Building

   1230 Apalachee Parkway

   Tallahassee, Florida 32399-1550

   (904) 488-9675

   
   

   Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989.

   
   

   APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4387

   
   

   Petitioner's proposed findings of fact are addressed as follows:

   
   

   1. Accepted. See HO# 2.

   2. Accepted.

   3. Accepted.

   4. Accepted. See HO# 2.

   5. Accepted. See HO# 8.

   6. Accepted. See HO# 8.

   7. Accepted. See HO# 8.

   8. Accepted. See HO# 6.

   9. Accepted. See HO# 6.

   10. Rejected. Hearsay.

   11. Accepted. See HO# 6.

   12. Rejected. Irrelevant.

   13. Accepted. See HO# 6 and #8.

   14. Accepted. See HO# 6.

Respondent's proposed findings of fact are addressed as follows:

1. Accepted. See HO# 8.

2. Accepted. See HO# 7.

3. Accepted. See Conclusions of Law.

4. Rejected. Contrary to fact. See HO# 6.

5. Rejected. Not proved at hearing.

6. Rejected. See HO# 8.

COPIES FURNISHED:

Thomas B. Hart, Esquire

Smoot, Adams, Johnson & Green, P.A. Post Office Drawer DD

Fort Myers, Florida 33902

Harold McLean, Esquire Deputy General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Ken Plante, Esquire General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Docket for Case No: 88-004387

Orders for Case No: 88-004387