STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1706

)

DONALD M. and MARY LOU )

STEARNS, )

)

Respondents. )

) DONALD M. STEARNS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1707

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled cases was held in Titusville, Florida, on November 27, 1989, and by telephone on November 30, 1989, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Steven A. Medina

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Frank J. Griffith, Jr.

Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, Florida 32780

STATEMENT OF THE ISSUE

The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.

PRELIMINARY STATEMENT

In Case No. 89-1706, the Department of Environmental Regulation issued a Notice of Violation dated December 19, 1988, against the Stearns and 101 other persons, who, like the Stearns, owned condominiums at Sunrise Landing Condominium. The condominiums are located on the west shore of the Indian River in Cocoa, Florida. The Notice of Violation alleges that numerous small docks had been constructed along the shoreline in violation of Chapter 403, Florida Statutes.

The Department of Environmental Regulation issued an Amended Notice of Violation and Orders for Corrective Action on March 23, 1989. The Amended Notice of Violation is against the Stearns and eight other persons. The allegations are substantially identical to those contained in the original notice of violation.

In Case No. 89-1707, the Department of Environmental Regulation issued an Intent to Deny dated January 8, 1988. The notice states that Mr. Stearns had applied for a dredge and fill permit to build a 320 square-foot pier. The notice states that the Department of Environmental Regulation intends to deny the permit because, among other things, installation of a pier in the proposed location, in which the water is shallow, would probably cause localized disturbance of the benthic community by prop wash.

Mr. and Mrs. Stearns requested a formal administrative hearing on each of these matters, which were consolidated after they were transmitted to the Division of Administrative Hearings.

As set forth in their unilateral prehearing stipulation, the Stearns assert three general defenses. First, their dock is exempt from the permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and the construction of the dock did not require a dredge and fill permit under Section 403.913, Florida Statutes. Second, the failure of the Department of Environmental Regulation to grant Mr. Stearns a timely administrative hearing renders the intent to deny voidable. Third, the Department of Environmental Regulation is estopped from bringing an enforcement proceeding against the Stearns because the Department had stated publicly that no permit was required for eight other docks located at the same condominium facility.

At the hearing, the Department of Environmental Regulation called one witness and offered into evidence 24 exhibits. The Stearns called one witness and offered three exhibits into evidence. All exhibits were admitted.

The transcript was filed on January 2, 1990. Both sides filed proposed recommended orders. Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting.

2. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities."

   
   

3. By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock.

   
   

4. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed.

   
   

5. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states:

   
   

   The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units.

   There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created.

   
   

6. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987.

   
   

7. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982.

   
   

8. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by

   12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work."

   
   

9. The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee.

   
   

10. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received.

    
    

11. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida

    Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility.

    
    

12. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987.

    
    

13. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line."

    
    

14. Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained:

    
    

    In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line.

    
    

    Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet.

    
    

15. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock

    construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location.

    
    

16. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet.

    
    

17. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987.

    
    

18. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes:

    
    

    Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers.

    
    

19. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."'

    
    

20. By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit.

    
    

21. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that,

    
    

    pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer.

22. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute.

    
    

23. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500.

    
    

24. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks.

    
    

25. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation.

    
    

26. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded.

    
    

27. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation.

    
    

28. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989.

    
    

29. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases.

    
    

30. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water.

31. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock.

    
    

32. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners.

    
    

33. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections or Chapters are to Florida Statutes.)

    
    

35. DER has jurisdiction to issue dredge and fill permits. Section 403.913(1) provides: "No person shall dredge or fill in, on, or over surface waters without a permit from the department unless exempted by statute or department rule."

    
    

36. Section 403.087(5) (a) allows DER to require a processing fee to cover the costs of "surveillance and other field services associated with any permit issued pursuant to this chapter. " Section 403.087(6)(a) and (b) provides that DER may revoke any permit if it finds that the holder "has submitted false or inaccurate information in his application" or "has violated law, department orders, rules, or regulations . .

    
    

37. Section 403.0876(3)(b) deals with the processing of permits. In general, an applicant may request an expedited hearing once his file has been transmitted to the Division of Administrative Hearings. In addition, Section 403.0876 provides specific timeframes within which DER, must comply or else, in certain cases, an application may be deemed approved.

    
    

38. Section 403.813(2) exempts from permits otherwise required by Chapter

403 activities associated with the following types of projects:

* * *

1. The installation . . . of mooring pilings

   . . .associated with private docking facilities and the installation of private docks, any of which docks:

   1. [Has no more than 1000 square feet of over-water surface area];

   2. Is constructed or held in place by pilings . . . so as not to involve filling or dredging other than that necessary to install the pilings;

   3. Shall not substantially impede the flow of water or create a navigational hazard;

   4. Is used for recreational, noncommercial activities associated with the mooring or storage of boats . . .; and

   5. Is the sole dock constructed pursuant to this exemption as measured along the shoreline for a distance of 65 feet . Nothing in this paragraph shall prohibit the department from taking appropriate enforcement action pursuant to this chapter to abate or prohibit any activity otherwise exempt from permitting pursuant to this paragraph if the department can demonstrate that the exempted activity has caused water pollution in violation of this chapter.'

1. "Pollution" is the presence in the waters of the state of any manmade or man-induced alteration of the. .

   . physical [or] biological . . . integrity of air or water . . . in quantities or at levels which are or may be potentially harmful or injurious to . . . animal or plant life .

   or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

   
   

   Section 403.031(7).

   
   

2. Rule 17-312.050(1)(d)4. (formerly found at Rule 17- 12.050), Florida Administrative Code, provides:

   
   

   multi-family living complexes and other types of complexes or facilities associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property.

   
   

3. Rule 17-312.080(7), Florida Administrative Code, provides that permits for dredging or filling directly in Class III waters approved for shellfish harvesting "shall not be issued."

   
   

4. Mr. Stearns' dock was not entitled to the exemption provided by Section 403.813(2) because the dock would not have been the sole dock constructed under the exemption for a distance of 65 feet. To the contrary, according to his application, Mr. Stearns' dock was 45 feet from its neighbor to the north and five feet from its neighbor to the south for a total distance of

   50 feet.

5. Mr. Stearns did not have the requisite interest to allow him to use the Common Elements upland for his dock. However, this requirement is part of the application, as discussed in the following paragraph, and is not part of the exemption requirements. The portion of the exemption rule treating multi-family living complexes as one parcel has no relevance to this case. For example, if the shoreline that is subject to such multiple ownership is sufficiently long, nothing in Rule 17-312.050 prevents the construction of several docks as long as they are at least 65 feet apart, even if the shoreline is common element of a condominium. Ownership may be relevant to the exemption issue only when the lot is less than 65 feet. Pursuant to the rule, a lot of less than 65 feet may contain one exempt dock, regardless of the proximity of the nearest dock.

   
   

6. Because Mr. Stearns' dock was not exempt, it is evident that he had to submit an application. By so doing, he was subject to the ownership requirement contained in the joint dredge and fill application form. Mr. Stearns used the November 30, 1982, form that is incorporated into Rule 17-312.900, Florida Administrative Code. The application requires an affidavit of ownership or control certifying that the applicant has or will have the necessary approval or permission to undertake the proposed activity.

   
   

7. In this case, Mr. Stearns never executed the affidavit. In the first two applications, he failed to check off either of the two alternatives. In the third application, he checked off an alternative, but failed to disclose the land to which the alternative applied. Moreover, he did not have the requisite approval, which could only come from the other unit owners or possibly the condominium association. All of the documents of record indicated that Mr. Stearns had absolutely no right to use the Common Elements to build a dock for his personal and exclusive use.

   
   

8. Because Mr. Stearns' dock was not exempt and he was required to submit an application, Mr. Stearns was subject to another requirement that he could not satisfy. Rule 17-312.080(7) prohibits the issuance of dredge and fill permits in Class III waters approved for shellfish harvesting, such as this portion of the Indian River. Mr. Stearns never obtained a variance from the Department of Natural Resources. DER thus could not grant his application.

   
   

9. DER could deny the application for several other reasons. Most important, Mr. Stearns constructed the dock before obtaining the permit. Even after he had completed construction, he certified, to the best of his knowledge, that he was responsible for obtaining all permits before the commencement of construction. Notwithstanding this certification, he disclosed on the July 11 and October 27 applications that the project was "proposed to commence" on June 22, 1987, and "to be completed" on July 3, 1987.

   
   

10. Section 403.087(6)(a) and (b) authorizes DER to revoke a permit if it finds that the permitholder has "submitted false or inaccurate information in his application" or has "violated law." Although no statute or rule expressly allows DER to deny a permit on such grounds, such authority must exist if DER may revoke a permit for these reasons. Mr. Stearns violated both of these provisions in his application, and DER had the right to deny his application on these grounds.

    
    

11. Lastly, concerning DER's refusal to grant the permit, there is no evidence to suggest that DER is estopped from denying the permit due to the delay in forwarding the pleadings to the Division of Administrative Hearing. Assuming that Section 403.0876 were not the exclusive means for forcing DER to act, the evidence in this case is that DER, with the consent of Mr. Stearns,

    withheld forwarding the pleadings for an administrative hearing as the parties pursued settlement negotiations. There is no evidence that Mr. Stearns at anytime asked that the pleadings be forwarded at an earlier date and DER refused.

    
    

12. As to the enforcement proceeding, DER has the authority to institute an administrative proceeding to order the prevention, abatement, or control of conditions creating a violations of Chapter 403, as Specified in Section 403.161(1). Section 403.121(2) (b).

    
    

13. It is a violation of Chapter 403:

    
    

    1. To cause pollution, except as otherwise provided in this chapter, so as to harm or injure . . . animal, plant, or aquatic life

    2. To fail to obtain any permit required by this chapter . . .

       
       

       Section 403.161(1).

       
       

14. A violation of either of the above subsections of Section 403.161 renders the violator liable to the state for any damage caused for civil penalties, as provided in Section 403.141. Section 403.141(1) provides that any person violating Section 403.161(1) is liable to the state for any damage caused to the air, water, or property, including animal, plant, or aquatic life, of the state

    
    

    and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property . . .. However, the court may receive evidence in mitigation.

    
    

    Section 403.141(2) adds:

    
    

    whenever two or more persons pollute the air or waters of the state in violation of this chapter . . . so that the damage is indivisible, each violator shall be jointly and severally liable for such damage and for the reasonable cost and expenses of the state incurred in tracing the source of discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property . . .. However, if such damage is divisible and may be attributed to a particular violator or violators, each violator is liable only for that damage attributable to his violation.

    
    

15. DER proved that Mr. Stearns had failed to obtain a permit that he had been required to obtain prior to commencing construction of the dock. DER proved that the Stearns' dock was likely to cause pollution by, among other things, damaging the submerged bottom through prop dredging and thereby

    disturbing important aquatic vegetation. However, DER did not prove that the construction or use of the dock actually caused such damage or water pollution generally.

    
    

16. However, DER did prove that Mr. and Mrs. Stearns had failed to obtain a required permit and thus must remove the dock. Although this violation renders the Stearns liable for investigatory expenses, such expenses cannot be awarded in this case for two reasons. First, DER failed to prove what expenses were attributable to the Stearns, even though the expenses were of a divisible nature. The failure to prove any damage actually caused by the Stearns' dock militates against allocating any portion of the cost of the investigation to the Stearns. Second, because the Stearns were pursuing an application at the same time, the $100 application fee, by statute, is intended to defray expenses of the type that DER claims, including field work.

    
    

17. Lastly, there is no evidence to suggest that DER is estopped from bringing the subject enforcement proceeding against the Stearns due to their asserted reliance on prior statements from DER that other docks in the area were exempt. Among other deficiencies with this defense are the absence of reliance and the well-established principle that a representation of law is not a basis for estoppel against the state. See, e.g., Greenhut Construction Co. v. Henry

A. Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine.

ENTERED this 22nd day of February, 1990, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1990.

APPENDIX

Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance.

12: adopted as to general shallowness and excessive shallowness with

respect to the passage of boats.

13-15: adopted or adopted in substance.

16: rejected as irrelevant. 17-24: adopted.

25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant.

Treatment Accorded Proposed Findings of the Stearns

1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate.

4: adopted.

5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard.

6: adopted.

7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking.

8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence.

9: [omitted.]

10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use.

11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence.

COPIES FURNISHED:

Dale H. Twachtmann Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Steven A. Medina Assistant General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780

Docket for Case No: 89-001706

Orders for Case No: 89-001706