STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN G. KOBLICK and MARINE ) RESOURCES DEVELOPMENT FOUNDATION, )

)

Petitioners, )

)

vs. ) CASE NOS. 90-2403

) 91-0258

STATE OF FLORIDA, BOARD OF )

TRUSTEES OF THE INTERNAL ) IMPROVEMENT TRUST FUND, and ) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondents, )

)

and )

)

IZAAK WALTON LEAGUE, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in these consolidated cases at Homestead, Florida, on April 24, 25, and 26, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

FOR PETITIONERS: W. Craig Eakin, Esquire

William R. Scherer, Esquire Conrad, Scherer and James, P.A. Post Office Box 14723

Fort Lauderdale, Florida 33302

FOR RESPONDENTS: Suzanne B. Brantley, Esquire

Kenneth E. Easley, Esquire Associate General Counsel MS-35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FOR INTERVENOR: Maureen B. Harwitz, Esquire

2390 Bayview Lane

North Miami, Florida 33181

STATEMENT OF THE ISSUE

The basic issue in Case No. 90-2403 is whether the application of the Petitioner, Ian G. Koblick, for a lease of sovereign submerged lands and an easement for an appurtenant previously filled area should be granted or denied. The Board of Trustees of the Internal Improvement Trust Fund propose to deny the application. The Intervenor, Izaak Walton League, opposes the application and supports the proposed denial.

The basic issue in Case No. 91-0258 is whether certain action proposed by the Board of Trustees of the Internal Improvement Trust Fund regarding filled areas in John Pennekamp Coral Reef State Park affects the substantial interests of the Petitioner, Marine Resources Development Foundation.

PRELIMINARY STATEMENT

On April 12, 1990, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, voted to deny the lease sought by Petitioner Koblick and at the same time voted to approve staff recommendations requiring removal of docks and mooring pilings and payment of lease fees in arrears. Petitioner Koblick filed a timely Petition For Administrative Hearing challenging the proposed denial of his lease application. Petitioner Koblick's petition was in due course referred to the Division of Administrative Hearings for formal proceedings. The Intervenor, Izaak Walton League, Mangrove Chapter, filed a Petition, and later an Amended Petition, seeking to intervene in these proceedings in opposition to the lease application and in support of the proposed denial of the lease. Intervention was allowed, subject to proof of standing at the formal hearing. Thereafter, on March 15, 1991, Petitioner Koblick filed a Motion To Amend Petition For Administrative Hearing. The motion was accompanied by a proposed Amended Petition For Administrative Hearing. By order issued March 25, 1991, the motion to amend the petition was denied.

At the formal hearing on April 24, 25, and 26, 1991, the Petitioners and the Respondents offered numerous exhibits and presented the testimony of numerous witnesses. The Intervenor presented the testimony of two standing witnesses and otherwise relied on evidence offered by the other parties. At the conclusion of the formal hearing on April 26, 1991, the parties were advised on the record that the deadline for filing their proposed recommended orders would be 30 days from the date of the filing of the transcript of the formal hearing. The transcript of the formal hearing was filed with the Hearing Officer on June 6, 1991. By memorandum dated June 12, 1992, counsel for all parties were advised that the transcript had been filed and were also specifically advised that ". . . the deadline for filing the parties' respective proposed recommended orders will be July 5, 1991." The Respondents and the Intervenor filed their respective proposed recommended orders on July 5, 1991. The Petitioners' proposed recommended order (titled "Petitioner's Memorandum In Support Of Recommended Order") was filed on July 9, 1991, four days late. It consisted of one hundred twelve pages.

On July 17, 1991, the Respondents filed a Motion To Strike Petitioner's Memorandum In Support Of Recommended Order. The primary grounds for the motion were that the Petitioners' document was in violation of Rule 22I-6.031, Florida Administrative Code, which requires that proposed recommended orders be submitted on time and that such proposals not exceed forty pages in length, absent prior leave to file a longer document. The Petitioners filed a timely response to the motion in which, in essence, they requested that they be excused

from the rules because their violation of the rules was unintentional. 1/ By order dated August 7, 1991, the motion to strike was denied 2/ with the additional observation that "[t]o the extent necessary and appropriate, the issues raised in the motion and response will be further addressed in the Recommended Order to be issued in this case."

Specific rulings on all proposed findings of fact submitted by the Respondents and the Intervenor are contained in the Appendix to this Recommended Order. For reasons explained therein, the Appendix also contains a much more general treatment of the proposals contained in the Petitioners' proposed recommended order.

FINDINGS OF FACT

1. Petitioner Ian G. Koblick is the record title holder of certain real property in Key Largo, Monroe County, Florida, located at 51 Shoreland Drive, where he owns and operates a for profit corporation known as "Koblick Marine Center" and a nonprofit corporation known as "Marine Resources Development Foundation." (MRDF) Petitioner purchased the property in the spring of 1985.

   
   

2. Petitioner Koblick's attorney contacted the Division of State Lands on behalf of Petitioner for a sovereignty submerged land lease for two docks and an easement for an appurtenant filled area, the subject of DNR lease file #44001275, in the fall of 1984. As part of the application process, Petitioner's attorney submitted to Respondent's staff a survey of the proposed submerged lands lease area, which contained water depth information.

   
   

3. The fill parcels known as "F-7" and "F-8," which are the subjects of the second petition, are not owned by either of the Petitioners.

   
   

4. Petitioner has no deeds or conveyances to the lands in the proposed lease and easement area. Petitioner has been using the lands in the proposed lease and easement area continuously since 1985, without consent from the Respondents. At no time has there been any written assurance made by Respondent or its staff that a lease would be issued to Petitioner.

   
   

5. The lands within the proposed lease and easement area lie within the boundaries of John Pennekamp Coral Reef State Park.

   
   

6. On September 21, 1967, the Respondent Board of Trustees dedicated certain sovereignty submerged lands to the Florida Board of Parks and Historical Memorials. The effect of this dedication was to extend the boundaries of John Pennekamp Coral Reef State Park to the shoreline. The Florida Park Service, part of the Division of Recreation and Parks in the Department of Natural Resources, has continuously managed the Park since then.

   
   

7. The Respondent Board of Trustees has not conveyed, alienated, or modified its interest in the lands within the proposed lease and easement area, except for one submerged land lease, #44-39-0784-5E, to Tahiti Village (a predecessor in interest to Petitioner) for a period of five years from August 1, 1978, through July 31, 1983. That lease was for a much smaller parcel of land than Petitioner's proposed lease area and was never renewed.

8. When Petitioner Koblick purchased his property, the two docks and the filled parcel, "F-9", in the proposed lease easement area were already in place. The then existing docks were not those previously consented to by Respondent. After he purchased the property, Petitioner constructed catwalks on the docks and upgraded the electrical system on the fill area without permission from either the Board of Trustees or the Division of Recreation and Parks.

   
   

9. Petitioner Koblick is not in possession of any permits giving consent to fill the filled area "F-9" in the proposed lease and easement area. The fill material at filled area "F-9" was placed there between 1964 and 1969, without the consent of the Respondents. Filled area "F-9" has riprap all along its outer edge and tip. This riprap area is currently habitat for a variety of marine plants and animals. Removal of all of the fill material at "F-9" would, of course, destroy that habitat and leave a barren area that might take many years to revegetate. A benthic community eventually would be created in the area from which the fill was removed.

   
   

10. Filled area "F-9" also provides protection to the existing shoreline, which includes a seawall, and to a basin that is landward of "F-9." Removal of all of the fill material at "F-9" would reduce the protection to the shoreline and expose the seawall and other shore structures to erosion. Removal of the fill material at "F-9" down to the mean high waterline would not have any demonstrated environmental benefits, but would be a hazard to navigation because at high tide the remaining fill would be difficult to see.

    
    

11. The majority of boats docked in the 18 slips in the proposed lease area pay slip rent to Koblick Marine Center. Only three MRDF boats are docked at the docks. A charter boat business, which leases out boats to the public, is also operated at the docks on the proposed lease area.

    
    

12. The Intervenor, Izaak Walton League, Mangrove Chapter, is a not for profit Florida corporation which has as its purpose the protection of the state's soil, water, woods, and wildlife. A substantial number of Intervenor's members live near Pennekamp Park and use the park for recreational and educational purposes. Any activity which detracts from, or has a potential for detracting from, the purposes to which the Pennekamp Park is dedicated also detracts from or has a potential for detracting from the recreational and educational interests of the Intervenor's members who live near and use the park.

    
    

13. Largo Sound is a manatee habitat. Manatees have been sighted in or near the proposed lease area. Activities in the proposed lease area, which include the discharge of pollutants and boat traffic to and from the docks, have a potential adverse impact on manatees, which are an endangered species.

    
    

14. There are benthic communities in the proposed lease area under the mooring areas and where pilings are located. There is no way Petitioner can relocate the docks out of the benthic communities in the proposed lease area.

    
    

15. The docks in the proposed lease area shade the benthic communities beneath them. Shading from boats at the docks in the proposed lease area, especially from boats used as residences that rarely leave the docks and from large vessels, damages the benthic communities.

16. Boats docking in the slips in the proposed lease area have caused bare, scoured, concave spots beneath their bottoms. This is due to shading, propeller activity, and grounding of the vessels. Sea grasses and corals have been killed as a result.

    
    

17. Boats docking in the proposed lease area have caused prop dredging or grounding damage to benthic communities and corals in Largo Sound, in the slips, just outside the slips, and in the canal adjacent to the proposed lease area.

    
    

18. Petitioner Koblick has taken various steps to prevent or minimize the possibility of water pollution from the activities at the proposed lease area. These steps include discontinuing the sale of fuel at the subject docks and adopting strict rules prohibiting the discharge of any pollutants from boats docked at his facility, and prohibiting various activities that might be a source of pollution. These efforts notwithstanding, boats docking in the proposed lease area have discharged oil, pollutants, and bilge water overboard. Further, while water quality samples taken from the proposed lease area show good levels of dissolved oxygen and good levels of nitrates, water quality samples taken from the proposed lease area also reveal the presence of ammonia and pesticides, including endrinosulfan, endrin, and lindane, together with its isomers, at levels which exceed state water quality standards. 3/ Pollutants pose a threat of harm to benthic communities, corals, manatees, and other wildlife.

    
    

19. Water depths in the slips and turning basin of the docks in the proposed lease area are shallower than minus four feet in some areas, ranging from minus 1.5 feet to minus 5.3 feet. Boats in those slips for the past five years have had drafts of more than 1.5 feet, some of them having drafts of 3 feet to 3 feet 8 inches.

    
    

20. Boating related activities in the proposed lease area contribute to cumulative adverse impacts on Pennekamp Park. If boats were eliminated from the docks in the proposed lease area, the benthic communities would be likely to recolonize in approximately two years.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Sec. 120.57(1), Fla. Stat.

    
    

22. The burden is on the applicant to show he is entitled to a lease and easement of sovereignty lands. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

23. The Petitioners argue that the Intervenor failed to prove standing in this case and that, therefore, its petition should be dismissed. Recent appellate court decisions appear to have somewhat relaxed the standards by which the standing of organizations is to be determined in cases involving environmental issues. See Town of Palm Beach v. State, Department of Natural Resources, 577 So.2d 1383 (Fla. 4th DCA 1991); and Friends of the Everglades, Inc. v. Bd. of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, 17 FLW D560 (Fla. 1st DCA, February 25, 1992). The proof in this case is sufficient to establish the standing of the Intervenor under the standards applied in Town of Palm Beach, supra, and Friends of the Everglades, supra. 4/

24. The Board of Trustees of the Internal Improvement Trust Fund is comprised of the Governor and the Cabinet. The Governor and the Cabinet are also the agency head of the Department of Natural Resources. The divisions of the Department of Natural Resources include the Division of Recreation and Parks and the Division of State Lands. (See Chapters 20, 253, and 258, Fla. Stat.)

    
    

25. Section 253.12, Florida Statutes (1989), provides in pertinent part:

    
    

    1. Except submerged lands heretofore conveyed by deed or statute, the title to all sovereignty tidal and submerged bottom lands

       . . . is vested in the Board of Trustees of the Internal Improvement Trust Fund.

       
       

26. Section 253.002, Florida Statutes (1989), provides in pertinent part:

    
    

    The Division of State Lands shall perform all staff duties and functions related to . . . administration . . . of state lands, title to which is . . . vested in the Board of Trustees of the Internal Improvement Trust Fund.

    
    

27. Section 253.77, Florida Statutes (1989), provides in pertinent part:

    
    

    1. No person may commence any . . . construction, or any other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use.

       
       

28. Rule 18-21.004(1)(a), Florida Administrative Code, provides in pertinent part:

    
    

    (a) For approval, all activities on sovereign lands must not be contrary to the public interest. . . .

    
    

29. Rule 18-21.003(38), Florida Administrative Code, defines "public interest" as, in pertinent part:

    
    

    . . . demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of the proposed action, which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.

30. Rule 18-21.0041(1), Florida Administrative Code, provides, in part:

    
    

    18-21.0041 Florida Keys Marina and Dock Siting Policies and Criteria.

    1. These policies and criteria shall be applied to all applications for leases, easements or consent to use sovereignty submerged lands in Monroe County for multi-slip docking facilities. The following General Policies and Specific Criteria shall be used

       in developing recommendations to approve, approve with conditions or deny the use of state owned sovereignty submerged lands for multi-slip docking facilities.

       1. General Policies -- special attention and consideration shall be given to the following:

          1. the proximity to the potential adverse impacts on any rare, threatened, or endangered species . . . or their habitat, or on any portion of the entire Florida Reef Tract and other corals, including but not limited to those in the John Pennekamp Coral Reef State Park, Key Largo National Marine Sanctuary, Looe Key National Marine Sanctuary, and Everglades National Park; and

          2. eliminating any adverse impacts on wetland or submerged vegetation or benthic communities; and

          * * *

          1. maintaining or enhancing water quality at levels within or above State water quality standards; and

          2. requiring adequate water depths to avoid dredging and other bottom disturbance;

          * * *

       2. Specific Criteria

          * * *

          1. Water depths requirements. Docking facilities shall only be approved in locations having adequate water depths in the boat mooring, turning basin, access channels and other such areas to accommodate the proposed boat use.

             1. A minimum water depth of -4 (minus four) feet mean low water shall be required.

          (b) Greater depths shall be required for those facilities designed for, or capable of, accommodating boats having greater than a 3 (three) foot draft, so that a minimum of one foot of clearance is provided between the deepest draft of the vessel and the bottom.

          * * *

          5. A specific lease condition for any new or expanded docking facility for 10 or more boats will be that the lessee shall maintain water quality standards as provided in Chapter 403, Florida Statutes.

          * * *

          7. In addition to the threshold specified by Section 18-21.005(1)(b), Florida Administrative Code, all applicants proposing docking facilities designed to moor 10 (ten) or more boats shall be required to obtain a lease.

          * * *

          9. No application to lease state owned sovereignty submerged lands for the purpose of providing multi-slip docking facilities shall be considered for approval unless there are no benthic communities present where the boat mooring area, turning basins, mooring piles or other structures are to be located

          . . . . (Emphasis added)

          
          

31. Section 258.004, Florida Statutes (1989), provides in pertinent part:

    
    

    (2) the Division of Recreation and Parks shall preserve, manage, regulate, and protect all parks and recreational areas held by the state . . . .

    
    

32. Section 258.007, Florida Statutes (1989), provides in pertinent part:

    
    

    (2) The division shall make and publish such rules and regulations as it may deem necessary or proper for the management and use of the parks . . . under its jurisdiction

    . . . .

    
    

33. Rule 16D-2.003, Florida Administrative Code, provides in pertinent part:

    
    

    1. Objective. All state parks have been established for the protection and preservation of their natural features or historic significance and for public use and enjoyment of the areas and facilities. The objective of these rules is to provide maximum public use consistent with the preservation

       of the natural features and historic value.

       * * *

       (14) The use of state park property shall not be granted if such use is contrary to or in conflict with the purposes for which the park property was purchased or would diminish the ecological, conservation, or recreation values of the park property.

34. Rule 16D-2.011, Florida Administrative Code, provides in pertinent part:

    
    

    16D-2.011 John Pennekamp Coral Reef State Park

    1. General. The John Pennekamp Coral Reef State Park is established for the protection of the coral reef formation and

       its associated marine life. These specialized rules are intended to provide maximum public use of the area consistent with the preservation of its scenic and scientific values.

       * * *

       (3) Construction Activities. Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or filling operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service facility shall be constructed or extended into, upon or across this state park.

       
       

35. In this case, Petitioner Koblick submitted an application for a lease to the Division of State Lands. In processing the application, the Division found that an activity was being conducted on the sovereign submerged lands of the state without any consent or approval from either of the Respondents as required by law. The application led to the further discovery of the presence of unauthorized structures and fill on the subject sovereign submerged land. Petitioner Koblick was advised by legal counsel from the outset of his purchase of the property as to the requirement for a lease to conduct activities on the submerged lands of the state and continued to conduct and allow such activities without any form of permission.

    
    

36. Under Sections 253.03 and 253.04, Florida Statutes (1989), the Respondent Board of Trustees is vested and charged with the management, control, conservation, and protection of all lands of the state and are given powers to protect state lands as provided therein. The Board of Trustees has the right and duty to approve or deny uses of sovereignty submerged lands, consistent with the statutes and the applicable rules.

    
    

37. In this case, Petitioner Koblick admits the submerged lands in the proposed lease area are sovereignty lands. Petitioner Koblick did not dispute that the above statutes and rules apply to his facility. Petitioner Koblick did not show consent by either of the Respondents to use the submerged lands. Petitioner Koblick did not show that his activities are in the public interest. The Respondents and Intervenor have presented evidence from which it can be reasonably concluded that Petitioner Koblick's activities are not in the public interest because the benefits from those activities accrue only to a few, not to the public at large. In addition, there is a cost to the environment for those activities which is not outweighed by any public benefit from those activities.

38. Petitioner Koblick's proposed lease activities, as well as current and past uses, are in proximity to, and have potential adverse impacts on, manatees, an endangered species, and on their habitat. Those activities also are in proximity to, and have potential adverse impacts on, the Florida Reef Tract and other corals, submerged vegetation, and benthic communities. Further, those activities do not have adequate water depths to avoid dredging and other bottom disturbance. Petitioner Koblick has stated he is doing everything possible to protect the environment and yet problems still persist. It is reasonable to conclude that the facility cannot be sufficiently modified to comply with the statutory and rule requirements. Petitioner Koblick has not met his burden to show he is entitled to a lease.

    
    

39. The Respondent Board of Trustees dedicated the lands within the proposed lease area to the Florida Board of Parks and Historical Memorials, predecessor of the Department of Natural Resources Division of Recreation and Parks. By virtue of that dedication, the Division has a management and administration interest in the submerged lands of Pennekamp Coral Reef State Park. The Division of Recreation and Parks is empowered to make and promulgate rules for state parks pursuant to Section 258.011, Florida Statutes (1989).

    
    

40. Petitioner Koblick has asserted that Rule 16D-2.011, Florida Administrative Code, adopted by the Division of Recreation and Parks, is invalid as applied, because the dedication has failed since the Division of Recreation and Parks allows other commercial activities, a park concession, within the Park. Petitioner Koblick has not, however, filed a challenge to the validity of the rule under section 120.56, Florida Statutes. Absent invalidation of a rule in Section 120.56 proceedings, the rule must be presumed to be valid and must be followed. The present park concession is lawfully permitted under contract with, and is controlled by, the Division of Recreation and Parks. This is not the case with Petitioner's facility, which never had any form of consent under Rule 16D-2.011, Florida Administrative Code. Petitioner's facility was not built in compliance with Rule 16D-2.011, and therefore violates the rule. Respondent has the right to require the removal of the docks under this rule as well as under Section 253.77, Florida Statutes (1989).

    
    

41. Related to the argument discussed above, Petitioner Koblick also argues that because there has been either a failure of acceptance of the dedication of the subject sovereignty lands for public State park purposes or an abandonment of the dedication, the Respondent Trustees are somehow estopped from applying and following otherwise applicable agency rules. The argument fails for several reasons, not the least of which is that the issue was not raised in the petition. 5/ The argument also relies on inapposite authorities and analogies, because a dedication by a government agency that dedicates public lands to a specific public purpose is quite different from a private dedication of private lands to a public purpose. Further, with or without the dedication to public park purposes, the State continues to be the owner of the subject land and the Respondent Trustees can adopt reasonable regulations in the public interest regarding the use of such lands. See, generally, Krieter v. Chiles, 17 FLW D444 (Fla. 3d DCA, February 11, 1992), which is quoted at length below. Finally, Petitioner Koblick's argument in this regard is illogical because it includes as a central proposition the notion that if an agency has ever acted in a manner inconsistent with an agency rule, it is precluded from thereafter following its rules. Such a rule of law would be most unworkable because agency mistakes could never be corrected.

42. Turning to the proposed easement area, "F-9," Rule 18-21.013(3), Florida Administrative Code, provides in pertinent part:

    
    

    1. When state-owned submerged lands have been filled without authority after June 11, 1957 . . . the board, by law may:

       1. Direct the fill be removed by or at the expense of the applicant.

    
    

43. Although Petitioner Koblick does not admit the state owns all of the filled area designated as "F-9," Petitioner Koblick presented no evidence to refute Respondents' evidence that "F-9" is formerly submerged, sovereignty land and was filled after June 11, 1957, without consent of the state. Accordingly, pursuant to Rule 18-21.013(3), Florida Administrative Code, the Petitioners can be required to remove the fill from "F-9." Nevertheless, balancing the environmental benefits against the environmental detriments it appears best to leave the fill material on "F-9" as it is. Removal of the fill at "F-9" would result in the destruction of an existing, although man-made, maritime habitat in order to create a barren area that may or may not resemble the original bottom, in the expectation that it will eventually become a marine habitat. On the whole, this area of the park, which has already been disturbed by a number of man-made structures and activities, would probably benefit most by being left alone, rather than by more disturbance.

    
    

44. Petitioner Koblick also raises an issue as to whether the existing uses are reasonable, traditional, common law riparian rights for an upland owner. The special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business conducted lawfully thereon. Ferry Pass Inspectors' & Shippers' Ass'n. v. White's River Inspectors' & Shippers' Ass'n., 48 So. 643 (Fla. 1909).

    
    

45. Petitioner Koblick's riparian rights argument as to use of the docks fails in part because he is not the riparian owner of the fill appurtenant to those docks. In addition, his business is not operated "lawfully thereon" in that it does not have the consent of the landowner to be there. Further, the Respondents do not deny Petitioner any of his traditional common law riparian rights; they only deny his use of sovereign submerged lands for a multi-slip docking facility, which is not a riparian right. As noted in the recent case of Krieter v. Chiles, 17 FLW D444 (Fla. 3d DCA, February 11, 1992) involving very similar issues:

    
    

    In their letter dated December 18, 1990, the Trustees denied Kreiter's request for consent of use. The Trustees stated that they adopted a policy, on April 12, 1990,

    that no future authorizations would be granted to construct any new private docks in the waters of Pennekamp Park. Marie Kreiter brought suit . . . .

    The appellant's upland property carries with it certain riparian rights. Game and Fresh Water Fish Commission v. Lake Islands, Ltd., 407 So.2d 189, 1991 (Fla. 1981).

    Although the riparian right of ingress and egress is an appurtenance to the ownership of private upland property, Hayes, 91 So.2d at 799, it is a qualified right which must give

    way to the rights of the state's people. Game and Fresh Water Fish Commission, 407 So.2d at 191 (quoting Ferry Pass Inspectors'

    & Shippers' Ass'n v. White's River Inspectors' & Shippers' Ass'n, 57 Fla. 399, 48 So. 643 (1909). As a riparian owner, the appellant argues that the expansion of Pennekamp Park, and the Trustees' subsequent denial of her request for a consent of use to build a dock, denies her the right of ingress and egress,

    by wharfing out, from her upland property.

    The appellant argues this is a taking by the state for which she is entitled to compensation. We disagree.

    Among other principles, the Public Trust Doctrine dictates that there be some impairment of a citizen's right to enjoy absolute freedom before allowing a citizen the use of public submerged land. Game and Fresh Water Fish Commission, 407 So.2d 189; Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (Fla. 1st DCA 1967). The appellant made no showing in the record of necessity or that ingress or egress to her property by means of water is the only method thereof. As she alleged in her complaint, her property is bounded on one side by a public road on which she can travel to and from her property.

    Ingress and egress by water, therefore, is not a necessity for which the appellant may claim a right superior to that of the public.

    As a riparian owner, the appellant has no title, of any nature, to the sovereign lands that are held in trust by the Trustees for the people of Florida. Graham v. Edwards, 472 So.2d 803, 806 (3d DCA 1985), rev. denied

    482 So.2d 348 (Fla. 1986). The Trustees have the authority to preclude the construction of private docks when it is in the public interest to do so. Graham, 472 So.2d at 807. This case is not a question of an expanding state marine park that encroaches upon the rights of a riparian owner. The appellant's riparian rights were subject to the state's ownership of the sovereign submerged lands long before Pennekamp Park was expanded to the shores of Key Largo. The appellant does not have the right to wharf out for purposes of ingress and egress. Ingress and egress is available from the property by land-based

    routes. Only in the absence of this modern-day alternative could the appellant argue a necessity of ingress and egress. In the absence of such a necessity, the appellant's riparian rights are subject to the public's interests.

46. Petitioner admits he has been using and deriving the benefits from the use of the sovereignty lands for over six years without compensation to the state, which is contrary to the interests of the state in its lands. Rule 18- 21.004(1)(c), Florida Administrative Code, provides in part:

    
    

    Equitable compensation shall be required for leases and easements which generate revenues, monies or profits for the user or that limit or preempt general public use.

    
    

47. Petitioner admits that Koblick Marine Center, owned and operated by him, generates revenues from slip rentals for the docks in the proposed lease area. In addition, his activities on the proposed lease area preempt the general public use. Therefore, Respondent has competent, substantial evidence before it to assess retroactive compensation for the use of the lands pursuant to Rule 18-21.011, Florida Administrative Code.

    
    

48. As to the issues raised in Case No. 91-0258, all issues raised in that case are moot, since neither Petitioner has any ownership interest in "F-7" or "F-8."

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order to the following effect:

1. Dismissing the petition in Case No. 91-0258 as moot;

   
   

2. Denying Petitioner Koblick's application for a lease and easement;

   
   

3. Ordering Petitioner Koblick to remove all docking structures located on the Respondent's lands;

   
   

4. Ordering Petitioner Koblick to pay lease fees in arrears in the amount of $10,202.24; and

   
   

5. Ordering that the fill material at filled area "F-9" not be removed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of April 1992.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SC 278-9675

Filed with the Clerk of the Division

of Administrative Hearings this 17th day of April 1992.

ENDNOTES

1/ There was also an argument to the effect that Petitioners' counsel believed that he had an extra five days beyond the deadline date because he was notified of the deadline by mail. The argument is without merit because all counsel were notified of the deadline in person at the hearing and the memorandum of June 12, 1991, described the deadline in terms of a date certain, not in terms of "so many days from the date of this memorandum."

2/ The motion to strike was denied primarily because of a reluctance on the part of the Hearing Officer to visit upon the client the consequences of the conduct of legal counsel. In retrospect, I now question the wisdom of my ruling in that regard and would suggest to all counsel in all future cases that those who, without some good excuse, submit late documents or documents of unauthorized length should not be surprised if motions to strike those documents are granted.

3/ The evidence in this case does not establish the source of the ammonia and pesticides.

4/ The present state of the law on standing in administrative cases is not as clear as one might wish. Compare Town of Palm Beach, supra, and Friends of the Everglades, supra, with such cases as Florida Society of Ophtalmology v. State Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988); School Bd. of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979); Cortese v. School Bd. of Palm Beach County, 425 So.2d 554 (Fla. 4th DCA 1983); Beheshtitabar v. Florida State University, 432 So.2d 166 (Fla. 1st DCA 1983); and Metch v. University of Florida, 550 So.2d 1149 (Fla. 3d DCA 1989). Hopefully, the Legislature or the Florida Supreme Court will provide additional guidance in the near future.

5/ Central to the Petitioner's argument in this regard is that the Respondents have not offered any evidence to prove an acceptance of the dedication of the subject sovereignty lands for public State park purposes. Any failure of proof in that regard may well be due to the fact that the petition did not raise any issue as to whether the dedication had been accepted. And in any event, the rules adopted by the Department of Natural Resources would appear to constitute evidence of the "acceptance" of the dedication, if any acceptancce is indeed necessary.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on the proposed findings of fact submitted by the Respondent and the Intervenor. For reasons explained below, I have not made specific findings regarding all of the proposed findings of fact submitted by the Petitioner.

Rulings on findings proposed by the Respondent: Paragraph 1: Accepted in substance.

Paragraph 2: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 3 and 4: Accepted in substance.

Paragraphs 5 and 6: These are all procedural and preliminary matters which are covered, to the extent necessary, in the Preliminary Statement.

Paragraphs 7,8, 9, 10, 11, 12, and 13: Accepted.

Paragraph 14: Rejected as contrary to the greater weight of the evidence. Paragraph 15: Accepted.

Paragraph 16: First three sentences accepted in substance. The remainder is rejected as irrelevent or as subordinate and unnecessary details.

Paragraphs 17, 18, 19, 20, 21, 22, 23: Accepted in substance. Paragraph 24: Rejected as irrelevant to the issues in this case. Paragraphs 25 and 26: Accepted in substance.

Rulings on findings proposed by the Intervenor: Paragraph 1: Accepted.

Paragraph 2: Rejected as constituting a conclusion of law rather than a proposed finding of fact.

Paragraph 3 (the first one): Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraph 3 (the second one): Accepted in substance.

Paragraph 4: Rejected as constituting a conclusion of law and unnecessary procedural details, rather than a proposed finding of fact.

Paragraphs 5 and 6: Accepted in substance.

Paragraphs 7 and 8: Rejected as subordinate and unnecessary details.

Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21: Accepted in substance.

Paragraphs 22, 23, and 24: Accepted.

Rulings on findings proposed by the Petitioner:

Before addressing the substance of the Petitioners' proposed recommended order, it should be noted that Section 120.5( ), Florida Statutes, requires specific rulings only on proposed findings of fact that are submitted "pursuant to agency rules." The Petitioners' findings were submitted in violation of two agency rules: Rule 22I-6.031(1), Florida Administrative Code, which requires that proposed recommended orders be submitted "within a time designated by the Hearing Officer," and Rule 22I-6.031(3), which prohibits proposed recommended orders "in excess of forty pages," absent prior permission. As noted in the Preliminary Statement, the Petitioners' proposed recommended order consisting of one hundred twelve pages was submitted four days late. No good excuse was forthcoming for either violation. Accordingly, the Petitioners have waived their statutory entitlement to a specific ruling on each and every factual assertion in their proposed recommended order.

To further complicate the matter, the Petitioners ignored the traditional, although not required, practice of numbering the paragraphs of their proposed recommended order. The arrangement of the document is also rather untraditional, with the factual assertions frequently interrupted with legal argument, and a long section captioned "The Evidence," which appears to be a summary of most of the testimony interspersed with a substantial amount of argument. Although the Petitioners' proposed recommended order has been read and considered in its entirety, for the foregoing reasons the Hearing Officer has not embarked upon the onerous chore of memorializing paragraph by paragraph or sentence by sentence the rulings on the factual assertions in the Petitioners' proposed recommended order. The following broader rulings are noted regarding this document.

Top of page 2 through middle of page 3: The material on these pages is rejected as largely irrelevant; first, because no estoppel issue was raised in the petition and, second, because, in any event, the evidence is insufficient to demonstrate a basis for estoppel.

Middle of page 3 through page 20: The material on these pages is rejected as consisting largely of subordinate and unnecessary details that are not necessary to the resolution of these cases. These pages are also interspersed with legal arguments which, of course, are not proposed findings of fact.

Pages 21 through 26: The material on these pages is rejected because it deals primarily with factual assertions that are irrelevant because they related to an issue not raised in the petition. To the extent some of these facts are arguably relevant to the issues raised by the petition, they are, for the most part, subordinate and unnecessary details. These pages are also interspersed with arguments and summaries of testimony which, of course, are not proposed findings of fact.

Pages 27 through 42: Rejected as consisting primarily of legal arguments with only a few scattered factual assertions.

Pages 43 through 54: Although titled "Additional Findings Of Fact," this portion of the Petitioners' proposed recommended order is a mixture of factual assertions, summaries of testimony, argument, and conclusions of law. With the exception of a few isolated details, it is all irrelevant because existing rules which have not been challenged are dispositive of the matters addressed in this portion of the proposed recommended order. It is also noted that some of the factual assertions are contrary to the greater weight of the evidence.

Pages 55 through 98: This portion of the Petitioners' proposed recommended order is basically a summary of the testimony of all of the witnesses at the final hearing who testified regarding the extent to which various activities are or are not detrimental to John Pennekamp Coral Reef State Park. Such summaries are not proposed findings of fact and, by their very nature, are primarily collections of subordinate and unnecessary details.

Pages 99 through 112: This portion consists primarily of a summary of the preceding 98 pages, argument, and conclusions of law, interspersed with a few factual assertions and concluding with a renewed motion to dismiss the Intervenor for lack of standing.

COPIES FURNISHED:

Suzanne B. Brantley, Esquire Kenneth E. Easley, Esquire Department of Natural Resources MS-35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

1. Craig Eakin, Esquire William R. Scherer, Esquire

   Conrad, Scherer and James, P.A. Post Office Box 14723

   Fort Lauderdale, Florida 33302

   
   

   Maureen B. Harwitz, Esquire 2390 Bayview Lane

   North Miami, Florida 33181

   
   

   Ken Plante, General Counsel Department of Natural Resources MS-10

   3900 Commonwealth Boulevard

   Tallahassee, Florida 32399-3000

   
   

   Virginia D. Wetherell, Executive Director Department of Natural Resources

   MS-10

   3900 Commonwealth Boulevard

   Tallahassee, Florida 32399-3000

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   IAN G. KOBLICK,

   
   

   Petitioner,

   vs.

   
   

   STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,

   Respondent, CASE NOS. 90-2403 and 91-0258

   IZAAK WALTON LEAGUE, MANGROVE CHAPTER,

   
   

   Intervenor.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, at the regularly scheduled Cabinet meeting on July 8, 1992, for consideration and final agency action.

   
   

   The hearing officer assigned by the Division of Administrative Hearings, Michael M. Parrish, served his Recommended Order on the Executive Director of the Department of Natural Resources on April 17, 1992, a copy of which is attached hereto as Exhibit A and incorporated herein by reference. Pursuant to section 120.57(1)(a)9, Florida Statutes, and Rule 18-7.001, Florida Administrative Code, the parties were allowed 25 days in which to submit written exceptions to the Recommended Order. Petitioner and Respondent filed their exceptions on May 12, 1992, and Intervenor filed its exceptions on May 20, 1992. Intervenor's exceptions were not considered as they were not timely filed.

   However, Intervenor was not prejudiced since its exceptions were the same as Respondent's. Petitioner filed his response to Respondent's exceptions on May 22, 1992, and Respondent filed its response to Petitioner's exceptions on May 27, 1992. Intervenor did not file a response.

   
   

   Having considered the complete record in this matter, the proposed final orders, the Recommended Order, the parties' exceptions and responses thereto, and being otherwise fully advised, the Board of Trustees hereby makes the following findings of fact and conclusions of law and enters the following final order:

   FINDINGS OF FACT

   
   

   The Hearing Officer's Findings of Fact in his Recommended Order are hereby adopted in their entirety and incorporated herein by reference.

   
   

   CONCLUSIONS OF LAW

   
   

   The Department hereby adopts as its Conclusions of Law all Conclusions of Law in the Hearing Officer's Recommended Order, except Conclusion of Law #23, which is modified to read as follows:

   
   

   23. Although Petitioner Koblick does not admit the state owns all of the filled area designated as "F-9," Petitioner Koblick presented no evidence to refute Respondents' evidence that "F-9" is formerly submerged, sovereignty land and was filled after June 11, 1957, without consent of the state. The Board of Trustees may direct staff to remove the fill "F-9" to the mean high water line.

   
   

   In performing its duty as trustee of the sovereignty submerged lands that are subject of this proceeding, the Board of Trustees determined that the benefits of removing the illegal fill "F-9" outweigh any impact the removal may have on the environment. This decision of the Board of Trustees must stand absent any demonstration that it is clearly erroneous. As the court noted in Yonge v. Askew, 293 So.2d 395,401 (Fla. 1st DCA 1974):

   
   

   Certainly we are not to assume that in the supervision and disposition of submerged lands the Trustees will knowingly ignore the rights of upland owners. It is to be assumed that they will exercise their judgment in a fashion that will give due regard to private rights as well as public rights. This Board would appear to be the most appropriate repository of the responsibility to be exercised in these matters in the first instance. The exercise of their judgment should not be subjected to adverse judicial scrutiny absent a clear showing of abuse of discretion or a violation of law

   
   

   Yonge v. Askew, quoting Haves, v. Bowman, 91 So.2d 795 (Fla. 1957). Petitioner presented no evidence, nor did the Hearing Officer make any finding, that the Board of Trustees, decision was an abuse of its discretion or that it violated the law. The Board's decision must, therefore, stand. The requirement that the illegal fill be removed was directed at the Department staff, not the Petitioner. Therefore, the Hearing Officer's conclusion that the Board of Trustees could lawfully require Petitioner to remove the fill is misplaced.

   
   

   Board of Trustees has the authority to accept or reject conclusions of law.

   Dept. of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981).

   
   

   Respondent's and Petitioner's exceptions to the Findings of Fact in the Recommended Order are rejected for the reasons set forth in Appendix 1, which is attached hereto and incorporated herein; Respondent's exception to Conclusion of Law #23 in the Recommended Order is accepted for the reasons stated above; and Petitioner's exceptions to the Conclusions of Law in the Recommended Order are rejected for the reasons set forth in Appendix 1, which is attached hereto and incorporated herein.

   Based on the Findings of Fact and Conclusions of Law in the Recommended Order,

   
   

   IT IS HEREBY ORDERED:

   
   

   1. That the petition in Case No. 91-0258 is dismissed as moot;

      
      

   2. That Petitioner's application for a lease and easement is denied;

      
      

   3. That Petitioner shall remove all docking structures located on Respondent's lands; and

      
      

   4. That Petitioner shall pay lease fees in arrears in the amount of

$10,202.24.

The foregoing constitutes final agency action. Any party adversely affected by this order has the right to seek judicial review of this Final Order pursuant to section 120.68, Fla. Stat. (1991), and rules 9.030(b)(1)(C) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Department of Natural Resources, Office of the General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, FL 32399-3000, and with the appropriate District Court of Appeal within thirty (30) days of the date this order is filed by the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the filing fee specified in section 35.22(3), Fla. Stat. (1991).

DONE and ORDERED 23 of July , 1992.

STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

Executive Director

CERTIFICATE OF MAILING

I HEREBY CERTIFY that a copy of this order was furnished by certified/return receipt mail to Maureen B. Harwitz, Esquire, 2390 Bayview Lane, North Miami, FL 33181, and W. Craig Eakin, Esquire, Conrad, Scherer, et al., P.

O. Box 14723, Ft. Lauderdale, FL 33302; and by interoffice mail to Suzanne B. Brantley, Esquire, Department of Natural Resources; and by U. S. mail to Michael

1. Parrish, Hearing Officer, Division of Hearings, DeSoto Building, 1230

   Apalachee Parkway, Tallahassee, FL 32399-1550 the 23 day of July 1992.

   
   

   
   

   Agency Clerk

   APPENDIX TO FINAL ORDER: RULING ON EXCEPTIONS PETITIONER'S EXCEPTIONS

   Findings of Fact

   
   

   1. Petitioner's exception to sentence two of Finding of Fact 4 is rejected as immaterial to the Finding of Fact challenged or to the outcome of this action. The evidence showed that Petitioner owns and controls Koblick Marine Center. [Depo.31] The fact that he, individually, applied for the lease and filed this petition convinces the agency that this exception is semantic only. If it were material, Petitioner would not have standing to bring this action.

      
      

   2. Petitioner's exception to sentence three of Finding of Fact 4 is rejected because the Hearing Officer's Finding is based on competent, substantial evidence in the record. [T-21-22, Vol. II; T-344, Vol. III]

      
      

   3. Petitioner's exception to Finding of Fact 5 is rejected as contrary to the evidence. Even if commercial ventures were operated on the site (which was significantly smaller than it is now) after 1971, the dedication was accepted in 1967. [See Conclusion of Law, 21, pp. 18-19, Rec. Order] There is not competent, substantial evidence in the record to show that the dedication has been abandoned by the public, as further evidenced by the public participation in this litigation.

      
      

   4. Petitioner's exception to sentence three of Finding of Fact 6 is rejected as contrary to the evidence, for the reasons stated in paragraph 3, above.

      
      

   5. Petitioner's exception to sentence two of Finding of Fact 8 is rejected since that finding is based on competent, substantial evidence in the record.

      [T-306-309, Vol. III]

      
      

   6. Petitioner's exception to the third sentence of Finding of Fact 11 is rejected as contrary to the evidence. [T-477-478, Vol. III]

      
      

   7. Petitioner's exception to sentence two of Finding of Fact 13 is rejected as that finding is based on competent, substantial evidence in the record. [T-421, 444-450, 480-481, Vol. III] Additionally, Petitioner admits to boat traffic to and from the marina. Obviously, any boat traffic could potentially harm the manatee. Past staff assessments are not persuasive here since this is a de novo proceeding, at which all evidence up to and including the date of hearing may be considered. McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

      
      

   8. Petitioner's exception to Finding of Fact 15 is rejected because that finding is based on competent, substantial evidence in the record. [T-403, 407- 409, 422, Resp. Exh. 8, 21]

      
      

   9. Petitioner's exception to sentence three in Finding of Fact 16 is rejected because it is based on competent, substantial evidence in the record, as stated and cited in paragraph 8, above.

   10. Petitioner's exception to Finding of Fact 17 is rejected because it is based on competent, substantial evidence in the record. [T-479-480, Vol. III] Additionally, Petitioner admits in his exceptions that boats lie on the bottom. When the damage began is immaterial; it is material only that boats moored there perpetuate the damage.

       
       

   11. Petitioner's exception to sentence three of Finding of Fact 18 is rejected because that finding is based on competent, substantial evidence in the record. [T-421, 444-450, 480, Vol. III]

       
       

   12. Petitioner's exception to the mention of the presence of ammonia and pesticides in the proposed lease area in Finding of Fact 18 is rejected because that mention is adequately qualified in his footnote 3. [Page 9, Recommended Order]

Conclusions of Law

1. Petitioner's exception to sentence two of Conclusion of Law paragraph

   15 is noted, but rejected as immaterial. It is also contrary to the evidence, which showed that the division was aware of a violation as early as 1980. [T- 308, Vol. III]

   
   

2. Petitioner's exception to sentence two of Conclusion of Law paragraph

   17 is also rejected as immaterial to the outcome of this action and contrary to law. Even if Petitioner did dispute that the lease area was within the Park, the denial was based squarely on Board of Trustees' rules, which Petitioner admits apply. See Kreiter v. Chiles, 17 FLW D444 (Fla. 3d DCA February 11, 1992); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. den. 482 So.2d 348 (Fla. 1986).

   
   

3. Petitioner's exception to sentence 3 of Conclusion of Law 17 is rejected as it is supported by Finding of Facts 4 and 8, supported by competent, substantial evidence in the record, as discussed above.

   
   

4. Petitioner's exception to sentence four of Conclusion of Law 17 is rejected as it is supported by Finding of Fact 20, supported by competent, substantial evidence in the record. Petitioner admits that only 20 boat slips are located in the subject area. From that it is self-evident that only a few benefit from the privately controlled marina, rather than the public at large. The discussion about the mooring buoys is irrelevant, and outside the scope of the evidence.

   
   

5. Petitioner's exception to sentence one of Conclusion of Law 18 is rejected as it is supported by Finding of Fact 20, supported by competent, substantial evidence in the record, as discussed above. Since this is a de novo process, former staff assessments (of 1988) would be superceded by those testified to at the final hearing. See McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

   
   

6. Petitioner's exception to the last sentence of Conclusion of Law 18 is rejected. Based on the findings of fact in the recommended order which are supported by competent, substantial evidence, the Hearing Officer could conclude that Petitioner did not meet his burden to prove he was entitled to a lease of state lands. See Kreiter v. Chiles, 17 FLW D444 (Fla. 3d DCA February 11, 1992); Department of Transportation v. J.W.C. Co.1 Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. den. 482 So.2d 348 (Fla. 1986).

7. Petitioner's exception to Conclusion of Law 20 is rejected as it is squarely based on Finding of Fact 5 and the law. See Miami v. Fla. E.C.Rv. Co., 79 Fla. 539, 84 So. 726 (1920); Waterman v. Smith, 94 So.2d 186 (Fla. 1957); Indian Rocks Beach South Shore, Inc. v. Ewell, 59 So.2d 647 (Fla. 1952).

   
   

8. Petitioner's exception to Conclusion of Law 26 is rejected. It is fair to conclude that Petitioner is the correct party since he brought and defended the petition, as stated and discussed in paragraph 1 (findings of fact), above.

RESPONDENT'S EXCEPTIONS

1. Respondent's exception to Finding of Fact 10 is rejected because there is competent substantial evidence in the record to support the finding.

   
   

2. Respondent's exception to Conclusion of Law 23 is accepted for the reasons stated in the foregoing Final Order.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

DIVISION OF ADMINISTRATIVE HEARINGS

IAN G. KOBLICK,

Petitioner,

vs.

STATE OF FLORIDA, BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,

Respondent, CASE NOs. 90-2403 91-0258

and

IZAAK WALTON LEAGUE, MANGROVE CHAPTER,

Intervenor.

/

FINAL ORDER

THIS CAUSE came before the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, at the regularly scheduled Cabinet meeting on July 8, 1992, for consideration and final agency action.

The hearing officer assigned by the Division of Administrative Hearings, Michael M. Parrish, served his Recommended Order on the Executive Director of the Department of Natural Resources on April 17, 1992, a copy of which is attached hereto as Exhibit A and incorporated herein by reference.

Pursuant to section 120.57(1)(a)9, Florida Statutes, and Rule 18-7.001, Florida Administrative Code, the parties were allowed 25 days in which to submit written exceptions to the Recommended Order. Petitioner and Respondent filed their exceptions on May 12, 1992, and Intervenor filed its exceptions on May 20, 1992. Intervenor's exceptions were not considered as they were not timely filed. However, Intervenor was not prejudiced since its exceptions were the same as Respondent's. Petitioner filed his response to Respondent's exceptions on May 22, 1992, and Respondent filed its response to Petitioner's exceptions on May 27, 1992. Intervenor did not file a response.

Having considered the complete record in this matter, the proposed final orders, the Recommended Order, the parties' exceptions and responses thereto, and being otherwise fully advised, the Board of Trustees hereby makes the following findings of fact and conclusions of law and enters the following final order:

FINDINGS OF FACT

The Hearing Officer's Findings of Fact in his Recommended Order are hereby adopted in their entirety and incorporated herein by reference.

CONCLUSIONS OF LAW

The Department hereby adopts as its Conclusions of Law all Conclusions of Law in the Hearing Officer's Recommended Order, except Conclusion of Law #23, which is modified to read as follows:

23. Although Petitioner Koblick does not admit the state owns all of the filled area designated as "F-9," Petitioner Koblick presented no evidence to refute Respondents' evidence that "F-9" is formerly submerged, sovereignty land and was filled after June 11, 1957, without consent of the state. The Board of Trustees may direct staff to remove the fill "F-9" to the mean high water line.

In performing its duty as trustee of the sovereignty submerged lands that are subject of this proceeding, the Board of Trustees determined that the benefits of removing the illegal fill "F-9" outweigh any impact the removal may have on the environment. This decision of the Board of Trustees must stand absent any demonstration that it is clearly erroneous. As the court noted in Yonge v. Askew, 293 So.2d 395,401 (Fla. 1st DCA 1974):

Certainly we are not to assume that in the supervision and disposition of submerged lands the Trustees will knowingly ignore the rights of upland owners. It is to be assumed that they will exercise their judgment in a fashion that will give due regard to private rights as well as public rights. This Board would appear to be the most appropriate repository of the responsibility to be exercised in these matters in the first instance. The exercise of their judgment should not be subjected to adverse judicial scrutiny absent a clear showing of abuse of discretion or a violation of law

Yonge v. Askew, quoting Hayes, v. Bowman, 91 So.2d 795 (Fla. 1957). Petitioner presented no evidence, nor did the Hearing Officer make any finding, that the Board of Trustees, decision was an abuse of its discretion or that it violated the law. The Board's decision must, therefore, stand. The requirement that the illegal fill be removed was directed at the Department staff, not the Petitioner. Therefore, the Hearing Officer's conclusion that the Board of Trustees could lawfully require Petitioner to remove the fill is misplaced.

Board of Trustees has the authority to accept or reject conclusions of law.

Dept. of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981).

Respondent's and Petitioner's exceptions to the Findings of Fact in the Recommended Order are rejected for the reasons set forth in Appendix 1, which is attached hereto and incorporated herein; Respondent's exception to Conclusion of Law #23 in the Recommended Order is accepted for the reasons stated above; and Petitioner's exceptions to the Conclusions of Law in the Recommended Order are rejected for the reasons set forth in Appendix 1, which is attached hereto and incorporated herein.

Based on the Findings of Fact and Conclusions of Law in the Recommended Order,

IT IS HEREBY ORDERED:

1. That the petition in Case No. 91-0258 is dismissed as moot;

2. That Petitioner's application for a lease and easement is denied;

3. That Petitioner shall remove all docking structures located on Respondent's lands; and

4. That Petitioner shall pay lease fees in arrears in the amount of $10,202.24.

The foregoing constitutes final agency action. Any party adversely affected by this order has the right to seek judicial review of this Final Order pursuant to section 120.68, Fla. Stat. (1991), and rules 9.030(b)(1)(C) and 9.110, Florida Rules of Appellate Procedure. To initiate an appeal, a Notice of Appeal must be filed with the Department of Natural Resources, Office of the General Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, FL 32399-3000, and with the appropriate District Court.

APPENDIX TO FINAL ORDER: RULING ON EXCEPTIONS PETITIONER' S EXCEPTIONS

Findings of Fact

1. Petitioner's exception to sentence two of Finding of Fact 4 is rejected as immaterial to the Finding of Fact challenged or to the outcome of this action. The evidence showed that Petitioner owns and controls Koblick Marine Center. [Depo.31] The fact that he, individually, applied for the lease and filed this petition convinces the agency that this exception is semantic only. If it were material, Petitioner would not have standing to bring this action.

   
   

2. Petitioner's exception to sentence three of Finding of Fact 4 is rejected because the Hearing Officer's Finding is based on competent, substantial evidence in the record. [T-21-22, Vol. II; T-344, Vol. III]

   
   

3. Petitioner's exception to Finding of Fact 5 is rejected as contrary to the evidence. Even if commercial ventures were operated on the site (which was significantly smaller than it is now) after 1971, the dedication was accepted in 1967. [See Conclusion of Law, 21, pp. 18-19, Rec. Order] There is not competent, substantial evidence in the record to show that the dedication has been abandoned by the public, as further evidenced by the public participation in this litigation.

   
   

4. Petitioner's exception to sentence three of Finding of Fact 6 is rejected as contrary to the evidence, for the reasons stated in paragraph 3, above.

   
   

5. Petitioner's exception to sentence two of Finding of Fact 8 is rejected since that finding is based on competent, substantial evidence in the record.

   [T-306-309, Vol. III]

6. Petitioner's exception to the third sentence of Finding of Fact 11 is rejected as contrary to the evidence. [T-477-478, Vol. III]

   
   

7. Petitioner's exception to sentence two of Finding of Fact 13 is rejected as that finding is based on competent, substantial evidence in the record. [T-421, 444-450, 480-481, Vol. III] Additionally, Petitioner admits to boat traffic to and from the marina. Obviously, any boat traffic could potentially harm the manatee. Past staff assessments are not persuasive here since this is a de novo proceeding, at which all evidence up to and including the date of hearing may be considered. McDonald v. Debt. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

   
   

8. Petitioner's exception to Finding of Fact 15 is rejected because that finding is based on competent, substantial evidence in the record. [T-403, 407- 409, 422, Resp. Exh. 8, 21]

   
   

9. Petitioner's exception to sentence three in Finding of Fact 16 is rejected because it is based on competent, substantial evidence in the record, as stated and cited in paragraph 8, above.

   
   

10. Petitioner's exception to Finding of Fact 17 is rejected because it is based on competent, substantial evidence in the record. [T-479-480, Vol. III] Additionally, Petitioner admits in his exceptions that boats lie on the bottom. When the damage began is immaterial; it is material only that boats moored there perpetuate the damage.

    
    

11. Petitioner's exception to sentence three of Finding of Fact 18 is rejected because that finding is based on competent, substantial evidence in the record. [T-421, 444-450, 480, Vol. III]

    
    

12. Petitioner's exception to the mention of the presence of ammonia and pesticides in the proposed lease area in Finding of Fact 18 is rejected because that mention is adequately qualified in his footnote 3. [Page 9, Recommended Order]

Conclusions of Law

1. Petitioner's exception to sentence two of Conclusion of Law paragraph

   15 is noted, but rejected as immaterial. It is also contrary to the evidence, which showed that the division was aware of a violation as early as 1980. [T- 308, Vol. III]

   
   

2. Petitioner's exception to sentence two of Conclusion of Law paragraph

   17 is also rejected as immaterial to the outcome of this action and contrary to law. Even if Peti ioner did dispute that the lease area was within the Park, the denial was based squarely on Board of Trustees' rules, which Petitioner admits apply. See Kreiter v. Chiles, 17 FLW D444 (Fla. 3d DCA February 11, 1992); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. den. 482 So.2d 348 (Fla. 1986).

   
   

3. Petitioner's exception to sentence 3 of Conclusion of Law 17 is rejected as it is supported by Finding of Facts 4 and 8, supported by competent, substantial evidence in the record, as discussed above.

4. Petitioner's exception to sentence four of Conclusion of Law 17 is rejected as it is supported by Finding of Fact 20, supported by competent, substantial evidence in the record. Petitioner admits that only 20 boat slips are located in the subject area. From that it is self-evident that only a few benefit from the privately controlled marina, rather than the public at large. The discussion about the mooring buoys is irrelevant, and outside the scope of the evidence.

   
   

5. Petitioner's exception to sentence one of Conclusion of Law 18 is rejected as it is supported by Finding of Fact 20, supported by competent, substantial evidence in tee record, as discussed above. Since this is a de novo process, former staff assessments (of 1988) would be superceded by those testified to at the final hearing. See McDonald v. Dept. of Banking & Finance, 346 so.2d 569 (Fla. 1st DCA 1977).

   
   

6. Petitioner's exception to the last sentence of Conclusion of Law 18 is rejected. Based on the findings of fact in the recommended order which are supported by competent, substantial evidence, the Hearing Officer could conclude that Petitioner did not meet his burden to prove he was entitled to a lease of state lands. See Kreiter v. Chiles, 17 FLW D444 (Fla. 3d DCA February 11, 1992); Department of Transportation v. J.W.C. Co.1 Inc., 396 so.2d 778 (Fla. 1st DCA 1981); Graham v. Edwards, 472 So.2d 803 (Fla. 3d DCA 1985), rev. den. 482 So.2d 348 (Fla. 1986).

   
   

7. Petitioner's exception to Conclusion of Law 20 is rejected as it is squarely based on Finding of Fact 5 and the law. See Miami v. Fla. E.C.Rv. Co., 79 Fla. 539, 84 So. 726 (1920); Waterman v. Smith, 94 so.2d 186 (Fla. 1957); Indian Rocks Beach South Shore, Inc. v Ewell, 59 So.2d 647 (Fla. 1952).

   
   

8. Petitioner's exception to Conclusion of Law 26 is rejected. It is fair to conclude that Petitioner is the correct party since he brought and defended the petition, as stated and discussed in paragraph 1 (findings of fact), abcve.

RESPONDENT' S EXCEPTIONS

1. Respondent's exception to Finding of Fact 10 is rejected because there is competent substantial evidence in the record to support the finding.

   
   

2. Respondent's exception to Conclusion of Law 23 is accepted for the reasons stated in the foregoing Final Order of Appeal within thirty (30) days of the date this order is filed by the Agency Clerk. The Notice filed with the District Court of Appeal must be accompanied by the filing fee specified in section 35.22(3), Fla. Stat. (1991).

DONE and ORDERED 23 of July , 1992.

STATE OF FLORIDA

DEPARTMENT OF NATURAL RESOURCES

Virginia B. Wetherell Executive Director

CERTIFICATE OF MAILING

I HEREBY CERTIFY that a copy of this order was furnished by certified/return receipt mail to Maureen B. Harwitz, Esquire, 2390 Bayview Lane, North Miami, FL 3$ 181, and W. Craig Eakln, Esquire, Conrad, Scherer, et al., P.

O. Box 14723, Ft. Lauderdale, FL 33302; and by interoffice mail to Suzanne B. Brantley, Esquire, Department of Natural Resources; and by U. S. mail to Michael

M. Parrish, Hearing Officer, Division of Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550 the 23 day of July, 1992.

Cynthia J. Rundles Agency Clerk

Docket for Case No: 90-002403

Orders for Case No: 90-002403