STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ROBERT A. KNUCK, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4286
) DEPARTMENT OF NATURAL RESOURCES, )
)
Respondent. )
)
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on October 31, 1991, in Homestead, Florida.
APPEARANCES
For Petitioner: James H. Burgess, Jr., Esquire
Syprett, Meshad, Resnick & Lieb, P.A.
Post Office Box 1238 Sarasota, FL 34230-1238
For Respondent: Suzanne B. Brantley, Esquire
Department of Natural Resources Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000 STATEMENT OF THE ISSUE
The issue presented is whether Petitioner's dock should receive authorized structure status or whether it should be modified or removed.
PRELIMINARY STATEMENT
By letter dated May 18, 1990, Respondent notified Petitioner that his dock did not qualify as a pre-1967 structure and needed, therefore, to be modified, and Petitioner timely requested a formal hearing regarding that determination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.
Petitioner testified on his own behalf and presented the testimony of Joseph T. Lance, Louie Johnston, and Rebecca Russell McFee. Respondent presented the testimony of Carl R. Nielsen, John A. Baust, Herbert Grant Gelhardt IV, Rod A. Maddox, and Anne S. Deaton. Additionally, Petitioner's Exhibits numbered 1-13, 15, 16, and Respondent's Exhibits numbered 1-10 were admitted in evidence.
Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. A specific ruling of each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
Petitioner is the owner of real property known as Lot 6, Block 10, Angler's Park, in Key Largo, Florida. He purchased that property in November of 1986.
Petitioner's property is contiguous to sovereign submerged lands in Largo Sound, a sound of the Atlantic Ocean. The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida holds title to submerged lands waterward of the mean high water line contiguous to Petitioner's property.
The submerged lands contiguous to Petitioner's property lie within the boundaries of John Pennekamp Coral Reef State Park. The Board of Trustees dedicated the submerged lands contiguous to what is now Petitioner's property to the Florida Board of Parks and Historical Memorials, now the Division of Recreation and Parks of the Department of Natural Resources, on September 21, 1967.
A dock existed on the submerged lands contiguous to Petitioner's property prior to 1967. The entire dock existed at least by 1938. The historic dock was probably one of the oldest docks in Largo Sound. Due to the passage of time and hurricanes, only the pilings and a concrete pad near shore still existed as of 1967. The dock was not rebuilt until 1988.
Throughout the years, boats were moored at the dock. After the planking on the dock no longer existed, people still moored their boats to individual pilings. The dock was considered an excellent location for fishing, and people travelled by boat to the location, tying their boats to the pilings to fish.
When Petitioner purchased his property, the only structures left on the contiguous submerged lands were thirteen concrete pilings and the concrete pad near shore. Only four of the pilings were sticking up out of the water. The remaining pilings were submerged. The original configuration of the historic dock was easily ascertained by the pilings and concrete pad.
After Petitioner purchased his property, he began constructing a residence. He would travel from elsewhere in the Key Largo area by boat, would tie his boat to one of the pilings, and would wade ashore.
Petitioner applied to Monroe County for a permit to rebuild portions of the dock. Although Monroe County accepted and retained his permit application fee, he was not issued a permit. Instead, he was told that he should contact the people at Pennekamp State Park.
Petitioner then contacted Respondent's employees at Pennekamp State Park about reconstructing portions of the dock. In response to that inquiry Petitioner received a letter dated June 10, 1987, advising him that Respondent was not a permitting agency. That letter further recited two of Respondent's rules prohibiting the removal or destruction of natural features and marine life and construction activities in that state park.
Having been frustrated by his attempts to obtain a permit to rebuild the dock from both Monroe County and from Respondent's employees at Pennekamp State Park, Petitioner made no further effort to obtain a permit or authorization from any other state, local, or federal government agency to reconstruct his dock. One day he backed a pickup truck to the edge of the water, hooked up, and raised the closest piling up in the air. Utilizing the existing pilings and adding additional ones, Petitioner rebuilt the dock "going a step at a time." In the course of his rebuilding the dock, Petitioner replaced the wooden decking and fasteners, replaced the wooden stringers and fasteners, added seven new concrete pilings, raised and repositioned several existing concrete pilings, and poured concrete footings for the new pilings.
He completed rebuilding the dock in 1989. During the almost one year that he was rebuilding the dock, he worked in plain view of employees of local and state agencies. He was easily observed by the Coast Guard, the Marine Patrol, and the Park Service boats travelling to and through the Marvin D. Adams Waterway located approximately seventy-five feet from his property. No one told Petitioner to stop his construction activities.
When it was completed, his dock was 12 feet wide and 84 feet long, 28 feet shorter than the historic dock. Petitioner's entire dock consists of 1018 square feet. Petitioner's dock is in the same location as the historic dock. Petitioner's dock is a private dock, used only by him when he moors his boat there occasionally.
In re-building his dock, Petitioner extended it to a distance so that the water depth at the end of Petitioner's dock is four feet mean low water. Additionally, Petitioner left an open space of one to two inches between each plank on the deck so that sunlight could penetrate between the deck planking the entire distance of the dock.
Pilings are an integral part of a dock.
In 1988 Respondent began conducting a survey of private docks, commercial marinas, and fills, both authorized and unauthorized, within the boundaries of Pennekamp State Park as those boundaries were extended in 1967 to Key Largo. The survey was to be utilized in developing a policy regarding structures within the extended park boundaries. Petitioner's dock was included in that survey. The information which Respondent transmitted to the Governor and Cabinet regarding Petitioner's dock was that it was not authorized, that it was built in 1990, and that the water depth at the mooring area, considered by Respondent to be the terminal end of the dock, was two feet.
Respondent did not advise the Governor and Cabinet that a dock had been in existence at Petitioner's property prior to 1967 and as far back as at least 1938, that the concrete pad and thirteen pilings from the historic dock still existed, or that Petitioner had rebuilt the dock in the same location, but shorter, than the historic dock. Further, Respondent did not advise the Governor and Cabinet that its water depth measurement of two feet was not taken at the waterward end of the dock, the way such a measurement is normally done. Respondent did advise the Governor and Cabinet that the access channel to the dock was four feet deep.
On April 12, 1990, the Governor and Cabinet, sitting as the head of Respondent, approved a policy regarding development encroachments in Pennekamp State Park. The portion of that policy which relates to private docks provides as follows:
Private docks must (1) be in existence prior to 1967 within state park waters to receive authorized structure status; (2) all docks within state park waters legally authorized by the Department of Natural Resources or the
Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by-case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041 Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters.
Respondent subsequently notified Petitioner that his dock fell into category (3), that it had been evaluated on an individual basis using the Florida Keys Marina and Dock Siting Policies and Criteria, that his dock had an impact on marine communities because it exceeded the size and dimension requirements and did not meet the water depth requirements, and that Petitioner's dock needed to be "modified." Respondent further advised Petitioner that the modifications required included reconstructing his dock to a T-shaped structure rather than Petitioner's rectangular-shaped structure. The new structure would be required to have a four-foot wide walkway with a terminal platform of no more than 160 square feet. Further, Respondent's proposed dock would also extend an additional 28 feet further into Largo Sound than Petitioner's dock. Respondent also required that Petitioner install permanent handrails along the dock in order to convert it to only a swimming/fishing pier, and the mooring of any water craft to the structure would be prohibited. Petitioner has not so modified his dock.
There are algae, sea grasses, sponges, coral, and other vegetation and marine life beneath and adjacent to Petitioner's dock, constituting a marine community.
Shading has an adverse impact on the growth of sea grasses and marine vegetation. Where shading exists under Petitioner's dock, the submerged land under the dock is nearly barren. However, Petitioner rebuilt the dock in a manner so as to reduce the effect of shading. The dock is 41 inches above water at high tide. The spacing between planks on the deck also allows sunlight to penetrate the water below Petitioner's dock. An underwater videotape of the area beneath and around Petitioner's dock reveals an extensive marine life habitat and nursery. The pilings which have been under water for such a long
time have an extensive buildup of sponges and coral which, in turn, provide a habitat for an enormous number of fish. Spiny Florida lobsters live under Petitioner's dock, as do mangrove snapper, barracuda, porkfish, damselfish, reef fish, sea cucumbers, and urchins.
In effect, Petitioner has created an artificial reef. Some of the barren areas beneath Petitioner's dock are a result of the halo effect, i.e., the crustaceans and fish living under the dock and in the sponges and soft corals on the pilings only graze so far from their homes in order to avoid predators. This halo effect can also be seen around the free-standing pilings outside of Petitioner's dock area. Even if the planking on Petitioner's dock were removed, the sea grasses would not grow back around the pilings since the grazing organisms would still be present.
Although there may be less shading beneath Respondent's proposed dock than exists underneath Petitioner's dock, substantial damage to the marine community beneath Petitioner's dock would be caused by the removal of Petitioner's dock and the building of a new one. It is not clear that the long- term effect of Respondent's proposed dock would have less adverse impact than Petitioner's dock. It is likely, however, that the removal of the present dock, with or without the subsequent construction of Respondent's proposed dock, would have a substantial adverse effect on the healthy marine community now existing beneath and around Petitioner's dock.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
This is not an enforcement action. Respondent does not seek to require removal of Petitioner's dock and does not seek the imposition of any sanction for Petitioner's failure to obtain a permit or authorization prior to rebuilding his dock. The policy under consideration in this cause specifically allows certain unauthorized private docks to remain. The clear intent of the policy is to regulate construction within the extended boundaries of Pennekamp State Park. In development of its policy, the Department inventoried existing private docks within the extended boundaries. That inventory included authorized and unauthorized private docks. The policy adopted by the Governor and Cabinet considered all existing private docks, placed those structures into three different categories, and then prohibited the future construction of new private docks within the extended boundaries of Pennekamp State Park.
The three categories for existing private docks are as follows: (1) those in existence prior to 1967 receive authorized structure status; (2) those legally authorized by Respondent or the Board of Trustees during or after 1967 receive status as authorized structures; and (3) all other private docks in existence since 1967 not legally authorized by the Department or the Board of Trustees are evaluated on a case-by-case basis, taking into consideration any authorization issued by state and federal environmental agencies and using the Florida Keys Marina and Dock Siting Policies and Criteria found in Section 18- 21.0041, Florida Administrative Code, as a guide for reviewing environmental impact on marine communities. Based upon that review, a structure within category (3) shall be designated as authorized or its removal or modification shall be required. In the case at bar, Petitioner contends that his dock falls within category (1), but Respondent contends that Petitioner's dock falls within category (3). In arguing its position that the dock falls into category (3),
Respondent ignores the language in the policy that states that even a dock within category (3) can be designated as an authorized structure. Instead, Respondent argues that the dock must be "modified," also ignoring the fact that the "modification" it requires includes removing Petitioner's dock in order to build a different one.
The policy itself does not define what is a "dock." However, Respondent's rules do contain a definition for the word "dock." Chapter 18-21, Florida Administrative Code, regulates the management of sovereignty submerged lands. Section 18-21.003(16) defines dock as ". . . a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels." Similarly, Section 18-20.003(13), Florida Administrative Code, another section of the rules of the Board of Trustees of the Internal Improvement Trust Fund, defines dock as ". . . a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels either temporarily or indefinitely."
In their Prehearing Stipulation the parties stipulated that: "A dock existed on the submerged lands contiguous to Petitioner's property prior to 1967. The entire dock existed in or about 1938. Only the pilings and a concrete pad near shore still existed as of 1967."
Respondent argues that for a number of years prior to 1967 there was no decking on the dock, that the pilings and concrete pad alone do not constitute a dock, and that, therefore, Petitioner's dock did not exist prior to 1967. Respondent's argument is in error. Respondent does admit that pilings are an integral part of a dock. Under Respondent's own rules the pilings and the concrete pad constitute a dock. Each of the pilings was a fixed structure used for the purpose of berthing buoyant vessels. The evidence is uncontroverted that even after the historic dock fell into disrepair, people fishing in the area would tie their boats to a piling, and fish. Petitioner has now replaced the planking between those pilings and has rebuilt the dock. It is clear that Petitioner's dock was in existence prior to 1967 and is entitled to receive authorized structure status pursuant to category (1) of the policy enacted by the Governor and Cabinet, sitting as the head of the Department of Natural Resources.
Even if the Department were correct in its argument that the Petitioner's dock should be placed in category (3), Petitioner is still entitled to have his dock designated as an authorized structure pursuant to category (3). Although that category relates to private docks in existence since 1967 and not legally authorized by the Department of Natural Resources or the Board of Trustees, that category requires a review of the structure on a case-by-case basis using the Florida Keys Marina and Dock Siting Policies and Criteria as a guideline for reviewing environmental impact on marine communities. Based upon that review, the structure would then be classified as authorized or removal or modification could be required.
There is no showing that Petitioner's dock has an adverse environmental impact. Although it is clear that there is shading under Petitioner's dock, the evidence is overwhelming that Petitioner's dock supports a vibrant and healthy marine community. Although there are no sea grasses directly under the dock, the entire area both under and around Petitioner's dock constitutes a healthy nursery and habitat for many marine plants and animals. Although Petitioner's dock is not of the configuration and size specified in
Chapter 18-21, no adverse impact has been shown. Rather, Petitioner's dock is elevated to a height of 41 inches above the water at mean high tide, and spacing exists between planks in order to allow sunlight to penetrate.
Although some conflicting evidence was presented that the water at the end of Petitioner's dock was somewhat less than four feet deep at mean low tide, the conflict was among Respondent's own witnesses. The greater weight of the evidence, and the convincing evidence, is that the water is four feet deep at mean low tide at the end of Petitioner's dock and that, therefore, the criterion in Chapter 18-21, Florida Administrative Code, regulating the depth of water related to the construction of private docks has been met. Although there was testimony that the impact from the Department's proposed dock might be less than the impact from Petitioner's dock, that testimony is not persuasive. It is expected that there would be some shading effect even under the modified dock proposed by Respondent. There is no evidence that the dock proposed by Respondent would result in the existence of a viable and healthy marine community as now exists under and around Petitioner's dock. There is simply no basis for Respondent's determining that Petitioner's dock should be modified rather than authorized, both being options under category (3). Respondent clearly has the authority to authorize the structure under category (3). Yet, Respondent proposes that Petitioner modify a rectangular dock which is 12 feet wide and 84 feet long and which supports a healthy and diverse marine community into a T-shaped dock four feet wide, make it 28 feet longer, and then place a handrail all the way around it so that Respondent can then prohibit the Petitioner from using it to dock his boat and allow him to only use that large structure for swimming and fishing. Such a result is clearly illogical and is not supported by the intent or the language of the policy.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered giving Petitioner's dock
authorized structure status.
DONE and ENTERED this 10th day of February, 1992, at Tallahassee, Florida.
LINDA M. RIGOT
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this 10th day of February, 1992.
APPENDIX TO RECOMMENDED ORDER
Petitioner's proposed findings of fact numbered 1-3 and 5-7 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed findings of fact numbered 4 and 9 have been rejected as unnecessary for determination of the issues involved herein.
Petitioner's proposed findings of fact numbered 8 and 10-19 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony.
Respondent's proposed findings of fact numbered 2-7, 9-13, 16-18, 20, 21, 26-31, 33, 36, and 37 have adopted either verbatim or in substance in this Recommended Order.
Respondent's proposed findings of fact numbered 1, 8, 14, 15, 25, 35, 40, and 41 have been rejected as being unnecessary for determination of the issues herein.
Respondent's proposed findings of fact numbered 22-24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, argument of counsel, or recitation of the testimony.
Respondent's proposed finding of fact numbered 19 has been rejected as being irrelevant to the issues herein.
Respondent's proposed findings of fact numbered 32, 34, 38, 39, and 42-44 have been rejected as not being supported by the weight of the evidence in this case.
COPIES FURNISHED:
James H. Burgess, Jr., Esquire Syprett, Meshad, Resnick
& Lieb, P.A.
Post Office Box 1238 Sarasota, Florida 34230-1238
Suzanne B. Brantley, Esquire Department of Natural Resources Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Don E. Duden
Acting Executive Director Department of Natural Resources Mail Station 10
3900 Commonwealth Boulevard
Tallahassee, FL 32399-3000
Ken Plante, General Counsel Department of Natural Resources Mail Station 10
3900 Commonwealth Boulevard
Tallahassee, FL 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
=================================================================
DEPARTMENT OF ADMINISTRATION DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA
ROBERT A. KNUCK,
Petitioner,
vs.
DOAH Case No. 90-4286
DEPARTMENT OF NATURAL DNR Case No. 90-145 RP RESOURCES,
Respondent.
/
FINAL ORDER
THIS CAUSE came before the Governor and Cabinet, sitting as the head of the Department of Natural Resources ("Department"), at the regularly scheduled Cabinet meeting on May 5, 1992, for consideration and final agency action.
The hearing officer assigned by the Division of Administrative Hearings, Linda M. Rigot, served her Recommended Order on the Executive Director of the Department on February 10, 1992, a copy of which is attached hereto as Exhibit A and hereby incorporated by reference. Pursuant to section 120.57(1)(a)9, Florida Statutes, and Rule 16-5.001, Florida Administrative Code, the parties were allowed 25 days in which to submit written exceptions to the Recommended Order. No exceptions were filed by Petitioner. Respondent filed its exceptions on March 6, 1992, and Petitioner filed his reply to those exceptions on March 26, 1992.
There were two issues presented in this case: 1) whether the dock should have been granted authorized structure status as a pre- 1967 dock; and 2) if the
dock were not authorized as a pre-1967 dock, whether it had an adverse impact on the marine communities.
Having considered the complete record in this matter, the proposed final order, the Recommended Order, the Department's exceptions and response thereto, and being otherwise fully advised, the Department 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 her Recommended Order numbered 1, 2, 3, 4, 6, 12, 14, 15, 16, and 17 are hereby adopted in their entirety.
Finding of Fact 5 is reworded (as the parties agree in their exceptions and reply) and adopted as follows:
5. In 1938 boats were moored at the dock. Between 1956 and 1988, after the planking was gone, people fished around the pilings,
often tying up to the pilings while they fished.
Findings of Fact 7-11, 13, and 18-22 are rejected because they relate to the second issue presented and are therefore irrelevant. The exceptions filed by the Department to paragraphs 9 and 21 are accordingly rejected as irrelevant, as stated in Appendix 1, attached hereto and incorporated herein.
CONCLUSIONS OF LAW
The Department hereby adopts as its Conclusions of Law the following portions of the Conclusions of Law of the Hearing Officer's Recommended Order:
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sec. 120.57, Fla. Stat. (1991).
The policy under consideration in this cause specifically allows certain unauthorized private docks to remain. The clear intent of the policy is to regulate construction within the extended boundaries of John Pennekamp Coral Reef State Park ("the Park"). In development of its policy, the Department inventoried existing private docks within the extended boundaries of the Park. The policy adopted by the Governor and Cabinet considered all existing private docks, placed those structures into three different categories, and then prohibited the future construction of new private docks within the extended boundaries of the Park.
The three categories for existing private docks are as follows: (1) those in existence prior to 1967 receive authorized structure status; (2) those legally authorized by Respondent or the Board of Trustees during or after 1967 receive status as authorized structures; and (3) all other private docks in existence since 1967 not legally authorized by the department or the Board of Trustees are evaluated on a case-by-case basis, taking into consideration any authorization issued by state and federal environmental agencies and using the Florida Keys Marina and Dock Siting Policies and Criteria found in Section 18- 21.0041, Florida Administrative Code, as a guide for reviewing environmental impact on marine communities.
The policy itself does not define "dock." However, Respondent's rules do contain a definition for the word "dock." Chapter 18-21, Florida Administrative Code, regulates the management of sovereignty submerged lands. Section 18-21.003(16) defines "dock" as ". . . a fixed or floating structure, including moorings, used for the purposes of berthing buoyant vessels." Similarly, Section 18-20.003(13), Florida Administrative Code, another section of the rules of the Board of Trustees of the Internal Improvement Trust Fund, defines dock as ". . . a fixed or floating structure, including moorings, used for the purpose of berthing buoyant vessels either temporarily or indefinitely."
In their prehearing stipulation, the parties stipulated that: "A dock existed on the submerged lands contiguous to Petitioner's property prior to 1967. The entire dock existed in or about 1938. Only the pilings and a concrete pad near shore still existed as of 1967."
The evidence is uncontroverted that even after the historic dock fell into disrepair, people fishing in the area would tie up their boats to a piling and fish. Petitioner has now replaced the planking between those pilings and has rebuilt the dock. It is clear that Petitioner's dock was in existence prior to 1967 and is entitled to receive authorized structure status pursuant to category (1) of the policy enacted by the Governor and Cabinet, sitting as the head of the Department of Natural Resources.
The remainder of the Hearing Officer's Conclusions of Law are specifically rejected as irrelevant to this order. The exceptions to those conclusions of law are accordingly rejected as irrelevant, as stated in Appendix 1.
Based on the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED:
Petitioner's dock is granted authorized structure status as a pre-1967 dock under the April 12, 1990 policy.
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 the of 13 May , 1992.
STATE OF FLORIDA
DEPARTMENT OF NATURAL RESOURCES
Virginia B. Wetherell Executive Director
Filed this 13 day of , 1992. Agency Clerk
CERTIFICATE OF MAILING
I HEREBY CERTIFY that a copy of this order was furnished by certified/return receipt mail to James H. Burgess, Jr., Esquire, Syprett, Meshad, P. O. Box 1238, Sarasota, FL 34230; by hand delivery to Suzanne B. Brantley, Esquire, Department of Natural Resources; and by U. S. mail to Linda
Rigot, Hearing Officer, Division of Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550 the 13 day of May , 1992.
Agency Clerk
APPENDIX TO FINAL ORDER: RULING ON EXCEPTIONS EXCEPTIONS TO FINDINGS OF FACT
Respondent's exception to Findings of Fact paragraph 5 is accepted.
Respondent's exception to Findings of Fact paragraph 9,
while it may be correct for the reasons stated therein, is rejected as irrelevant to this order.
Respondent's exception to Finding of Fact paragraph 21,
while it may be correct for the reasons stated therein, is rejected as irrelevant to this order.
EXCEPTIONS TO CONCLUSIONS OF LAW
1. Respondent's exceptions to Conclusions of Law paragraphs 1, 3, 4, while they may be correct for the reasons stated therein, are rejected as irrelevant to this order. Respondent's exception stated in paragraph 2 is rejected since the Board of Trustees' rules are applicable to this action in a state lands context. Since the hearing officer found as a fact that "[a] dock existed on the submerged lands contiguous to Petitioner's property prior to 1967," and concluded as a matter of law that "[i]t is clear that Petitioner's dock was in existence prior to 1967 and is entitled to authorized structure status pursuant to category (1) of the policy. . . ," that is dispositive of this case, and it is not necessary to reach conclusions about any other issues. The exceptions are therefore rejected as irrelevant.
It is within the authority of the Department to accept or reject conclusions of law. Dept. of Professional Regulation v. Wayne, 405 So.2d 471 (Fla. 1st DCA 1981). The Department rejects only those portions of the Hearing Officer's Conclusions of Law which are not necessary to its final order and which are therefore irrelevant.
| Issue Date | Proceedings |
|---|---|
| May 14, 1992 | Final Order filed. |
| May 05, 1992 | Final Order filed. |
| Mar. 31, 1992 | (Petitioner) Reply Memorandum and Written Exceptions to Proposed Substituted Order filed. |
| Mar. 26, 1992 | Reply Memorandum and Written Exceptions to Proposed Substituted Orderfiled. |
| Feb. 10, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 10/31/91. |
| Dec. 19, 1991 | Petitioner's Proposed Findings of Fact and Conclusions of Law filed. |
| Dec. 13, 1991 | Respondent's Proposed Findings of Fact, Conslusions of Law and Recommended Order filed. |
| Nov. 15, 1991 | Transcript filed. |
| Nov. 04, 1991 | Original Exhibits one exspando folder filed. (From Suzanne B. Brantley) |
| Nov. 01, 1991 | (Respondent) Motion For Official Recognition filed. (From Susanne B. Brantley) |
| Oct. 29, 1991 | (joint) Prehearing Stipulation filed. |
| Oct. 28, 1991 | (DNR) Motion for Official Recognition filed. |
| Oct. 04, 1991 | Notice of Taking Deposition filed. (From James H. Burgess, Jr.) |
| Oct. 02, 1991 | Notice of Taking Deposition Duces Tecum filed. (From Suzanne B. Doub Brantley) |
| Sep. 27, 1991 | Letter to MMP from S. Brantley (Re: Request for Subpoenas) filed. |
| Jul. 08, 1991 | Notice of Hearing sent out. (hearing set for Oct. 31, 1991; 9:00am; Homestead). |
| Jun. 28, 1991 | cc: (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Jun. 19, 1991 | Notice of Serving Answers to Interrogatories filed. (From James H. Burgess) |
| Jun. 06, 1991 | Letter to MMP from James H. Burgess, Jr. (re: Order of May 7, 1991) filed. |
| May 14, 1991 | Letter to MMP from Suzanne B. Brantley (re: resetting hearing) filed. |
| May 07, 1991 | Order Granting Continuance sent out. (Hearing cancelled). |
| May 01, 1991 | Stipulation for Continuance filed. (From Suzanne B. doub & James H. Burgess, Jr.) |
| Apr. 05, 1991 | (Respondent) Notice of Taking Deposition filed. (From Suzanne B. Doub) |
| Feb. 13, 1991 | CC Petitioner's Response to Production Request; Answer to Request ForAdmissions & attachment filed. (From James H. Burgess) |
| Feb. 05, 1991 | Respondent's First Set of Interrogatories to Petitioner (corrected 1st page only); Respondent's Request For Admissions (corrected 1st page only) filed. (from Suzanne B. Doub) |
| Jan. 24, 1991 | (Respondent) Notice of Service of Interrogatories W/ Respondent's Request for Admissions & attachments filed. (From Suzanne B. Doub) |
| Jan. 11, 1991 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for May 9, 1991: 9:00 am: Homestead) |
| Jan. 10, 1991 | (Respondent) Motion to Continue Final Hearing filed. (From Suzanne B.Doub) |
| Jan. 07, 1991 | Respondent's Request for Production of Documents filed. (From SuzanneB. Doub) |
| Oct. 31, 1990 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for Feb. 14, 1991: 9:00 am: Homestead) |
| Oct. 29, 1990 | Letter to MMP from James H. Burgess (re: no objection to continuing case) filed. |
| Oct. 23, 1990 | (Respondent) Motion to Continue Final Hearing filed. (from Suzanne B.Doub) |
| Oct. 08, 1990 | Respondent's Response to Interrogatories filed. (From Suzanne B. Doub) |
| Oct. 05, 1990 | Respondent's Response to Request For Production filed. (From Suzanne B. Doub) |
| Sep. 06, 1990 | Order (petitioner's motion for leave to file amended petition granted) sent out. |
| Sep. 06, 1990 | Order Requiring Prehearing Stipulation sent out. |
| Sep. 06, 1990 | Notice of Hearing sent out. (hearing set for Nov. 15-16, 1990: 9:00 am: Homestead) |
| Aug. 06, 1990 | (Respondent) Notice of Substitution of Counsel filed. (From Suzanne B. Doub) |
| Aug. 06, 1990 | Letter to MMP from James H. Burgess (re: Supplemental response to thye department's requirements that the petitioner contact counsel for the respondent on matters serforth in the department's order) filed. |
| Jul. 30, 1990 | (Respondent) Response to Initial Order filed. (From Suzanne B. Doub) |
| Jul. 27, 1990 | (petitioner) Motion for Leave to File Amended Petition; Amended Petition (+ att's); & cover letter from J. Burgess filed. |
| Jul. 18, 1990 | Initial Order issued. |
| Jul. 11, 1990 | Letter to DNR from J. Burgess (request for hearing); Agency Action Letter; Letter to F. Mainella & G. Gelhardt from R. Knuck (objections toDNR's summary report); & Agency Referral Letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 1992 | Agency Final Order | |
| Feb. 10, 1992 | Recommended Order | Dock authorized as pre-1967 structure in Pennekamp State Park where entire dock existed in 1938 and where pilings remained in original location |
