STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on April 10, 1995, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Leo J. Hageman, pro se

Rt. 1 Box 228 Paradise Lane Crescent City, Florida 32112

For Respondent Robert M. Carter, pro se Carter: 3906 Alcazar Avenue

Jacksonville, Florida 32207

For Respondent Kathleen Toolan, Esquire and DEP: Christine Stretsky, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

These three cases involve sequential proposed agency actions with regard to permitting a dock constructed in Putnam County.

Due to the sequential referrals, agency reorganizations, intervening actions of the parties, and the complexity of the legal issues as framed by the parties, the issues are more specifically described in the following preliminary statement.

PRELIMINARY STATEMENT

This dispute originally commenced upon Mr. and Mrs. Hageman filing a petition for administrative proceeding to protest an August 16, 1994 consent order between Robert Carter and the Florida Department of Environmental Protection (DEP). The consent order addressed Mr. Carter's unauthorized construction of a dock. This was originally O.C.G. Case No. 94-2443 and became DOAH Case No. 94-6794, when referred to the Division of Administrative Hearings (DOAH) on December 9, 1994.

Subsequent thereto, Petitioners challenged DEP's issuance of an after-the- fact permit dated November 16, 1994, authorizing the construction and maintenance of Mr. Carter's dock. This was originally O.C.G. Case No. 94-3710, but became DOAH Case No. 95-0158, upon a January 23, 1995 referral.

Petitioners also challenged the issuance of a December 5, 1994 consent of use for the dock. Consents of use do not have individual O.C.G. case numbers assigned. They are issued by the Board of Trustees of the Internal Improvement Fund. The Board was formerly serviced by the Department of Natural Resources, Bureau of State Lands, and now is serviced by the Division of State Lands staff within DEP. The final challenge was referred on March 3, 1995 and became DOAH Case No. 95-0955.

At DOAH, the cases were consolidated for formal hearing. The thrust of Petitioners' several petitions are allegations that their interests are affected because the Carter dock crosses their riparian rights line and violates the 25- foot setback requirement of Rule 18-21.004(3)(d) F.A.C.

After legislative renaming and realigning of agencies, the only agency now involved is DEP. At formal hearing, the agency made two motions.

First, DEP argued its pending Motion for Summary Recommended Order of Dismissal directed only to DOAH Case No. 95-0955, the Hagemans' protest of the consent of use issued by DEP on behalf of the Board of Trustees of the Internal Improvement Fund. Ruling on that motion was reserved to this recommended order (TR-19-21).

Second, DEP moved ore tenus to dismiss the petition which challenged the entry of the consent order, as executed between the agency and Mr. Carter which became DOAH Case No. 94-6794, upon grounds that the Hagemans' petition filed September 26, 1994, failed to set forth a sufficient basis to establish their standing by not adequately alleging how their environmental interests are substantially affected by the agency's action. That motion was denied (TR-22- 30), but was renewed within the agency's post-hearing proposal.

For purposes of an orderly formal hearing, the burden of proof and duty to go forward was placed upon Respondents Carter and DEP, as the parties seeking to change the status quo.

Mr. Carter presented the oral testimony of Kenneth R. Krentz, Mary Ann Krentz, and Ruth C. Carter, and testified on his own behalf. He offered one exhibit, which was not admitted in evidence.

DEP presented the oral testimony of Steven Biemiller, Thomas L. Wiley, and Russell Price and had two exhibits admitted in evidence.

The Hagemans presented the oral testimony of Renate Hageman and offered five exhibits, one of which was admitted in evidence.

The parties stipulated to the admission of 13 joint exhibits and the application of Chapters 26, 403, 373, and 253 F.S., and the Florida Constitution.

The facts stipulated among the parties in their prehearing stipulation have been adopted herein.

A transcript was filed in due course and all timely-filed findings of fact have been ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Respondent Carter is the owner of real property located at 102 Hummingbird Lane, Crescent City, Putnam County, Florida, ("The Property")

   
   

2. The Property has a shore length of 68.5 feet on Crescent Lake.

   
   

3. Crescent Lake is a "water of the state" as defined in Section 403.031,

   F.S.

   
   

4. The agency, now DEP, is the state agency charged with environmental

   concerns and permission to use submerged state lands. There are two types of authorization an applicant must receive in order to construct a dock on state owned submerged lands. The first is regulatory, which addresses issues concerning environmental impacts. The second is proprietary, which addresses issues concerning use of state owned submerged lands.

   
   

5. Mr. and Mrs. Hageman, Petitioners herein, own property adjacent on the east of Mr. Carter's property. 1/ They have a 240 foot dock in place going out into Crescent Lake.

   
   

6. Mr. Carter's westerly neighbor also has a shorter dock going into the lake.

7. The Carters purchased the Property from an estate, with the announced intention to erect their own dock for water recreational purposes. Before closing the sale, they were warned off the property by Mr. Hageman who claimed his riparian rights would be violated if any dock were built on the Property. After inquiries to DEP and the Army Corps of Engineers, the Carters purchased The Property anyway.

   
   

8. DEP has no jurisdiction to regulate docks under 1000 square feet. Mr. Carter received DEP Exemption 542504222 to construct a dock under 1000 square feet on The Property.

   
   

9. Mr. Carter constructed a single family private use dock, including a boat shelter, extending from The Property into Crescent Lake. The dock was built approximately 35 feet from Hagemans' property line, straight out into the water, and 25 feet from the property line of his neighbor on the other side. This placed the Carter dock roughly perpendicular to the approximate center of Mr. Carter's shoreline.

   
   

10. Petitioners conceded that Mr. Carter honored his westerly neighbor's property line, but asserted that he should have, and had not, honored his easterly property line, the line dividing his and Petitioners' property, waterward beyond the shoreline.

    
    

11. In all, Petitioners Hageman have filed three formal petitions against the Carter dock. See Findings of Fact 16, 18, and 33, infra. All three petitions herein oppose the Carter dock as constructed upon a theory that it crosses Petitioner's riparian rights line and therefore violates the setback criteria found in Rule 18-21.004(3)(d) F.A.C.; that it blocks a channel exclusive to Petitioners' use and poses an impediment to navigation of all boats, particularly Petitioners' sailboat; that its boat shelter is enclosed contrary to rule; that it does not meet the ten-to-one rule; and that it blocks Petitioners' view and lowers their property value.

    
    

12. The Hagemans initially filed a complaint with the DEP in regard to the dock.

    
    

13. In response to the Hagemans' complaint, Steven Biemiller, an environmental specialist in the dredge and fill compliance/enforcement section of DEP's northeast district, and John Hendricks of the Army Corps of Engineers visited the Property on July 25, 1994. They found that the Carter dock as built exceeded 1,000 square feet in surface area. It was, however, consistent in length, width, and alignment with other docks in the area, including Petitioners' dock.

    
    

14. Mr. Biemiller calculated Carter's dock to be 1,400 square feet. It therefore exceeded the state exemption criteria and required a state permit. Mr. Carter had constructed his dock without a valid permit from the state agency, and DEP responded by issuing him a warning letter.

    
    

15. Carter and DEP thereafter entered into Consent Order O.C.G. 94-2443 to address the unpermitted dock construction. Testifying as an expert in the agency's enforcement and compliance procedures, Mr. Biemiller established that negotiated consent orders of this type are a standard agency procedure to resolve minor permitting violations. His testimony is accepted on that issue and to the effect that the purpose of all consent orders, including the one at issue here, is to return the non-complying structure to compliance with the applicable state rules and statutes.

16. The consent order provides, in pertinent part, that Mr. Carter will

    (a) pay the agency $300.00, which amount includes a $200.00 civil penalty and

    $100.00 for agency costs and expenses; AND (b) reduce the size of his dock to under 1,000 square feet or obtain an after-the-fact permit whereby the agency would authorize the 1400 square foot dock to remain in place as already constructed. The Hagemans timely filed a petition challenging the consent order.

    
    

17. The consent order herein addressed DEP's environmental concerns by jump-starting the permit process through which the agency could examine the environmental impacts posed by the dock project. In Mr. Biemiller's expert opinion, this consent order accomplished the agency's statutory and regulatory goals at that point because Mr. Carter paid his fine and applied for a dredge and fill permit.

    
    

18. Agency permit 542558842 was issued to Mr. Carter on November 16, 1994. It approved the proposed project and authorized construction of a private use dock having a 4.75-foot wide plus 230-foot long access walkway, a 10.3-foot wide and 20.3-foot long covered boat shelter, plus an 8.5-foot long and 12.8-foot wide waterward "L" platform, within Crescent Lake, Putnam County. The Hagemans timely filed a petition challenging the permit.

    
    

19. The Hagemans' concerns about the Carter dock and boat shelter blocking their view and diminishing their property value were raised by their petitions, but no evidence or argument was presented on the latter issue. "View" and market value concerns are not addressed by the jurisdiction or authority conferred upon DEP by either statute or rule, and may not be considered here.

    
    

20. In determining whether or not to issue dredge and fill permits, the agency examines a project's impact on water quality, its biological impacts, whether the project is contrary to the public interest and how it impacts, if at all, on wetlands. The agency does not look at riparian rights. Those rights are addressed, if at all, by agency review of applications for consents of use and the rules applicable thereto.

    
    

21. Thomas Wiley was the field inspector for the dredge and fill permit which is at issue. He visited Mr. Carter's property with another agency employee, Erica Robbins, to conduct a site assessment. Mr. Wiley prepared the Permit Application Appraisal. Mr. Wiley has a Bachelor of Science degree in environmental biology and twelve hours towards his Masters degree in the same discipline. He has been employed by the agency for four and a half years as a environmental specialist. During that time, he has reviewed approximately 300 dredge and fill applications. He was accepted as an expert in the agency's environmental resource permitting procedures and the impacts of dredging and filling projects on wetlands. Mr. Wiley recommended issuance of the permit in part based on his determination that the long term adverse impacts of the Carter dock on water quality are minimal and that the long term adverse impacts of the project on submerged resources also are minimal. His expert opinion on these issues is accepted, as is his unrefuted mixed fact and opinion testimony that the project site contains submerged beds of eelgrass (vallisnaria). These eelgrass beds end approximately 20 feet landward of the Carter boat shelter and dock. Carter's boat shelter and dock do not pose a significant impact to the eelgrass and will not adversely affect the conservation of fish and wildlife. The Carter boat shelter has one almost closed side, one side which descends to about one and a half feet above the water and two open ends. It is not substantially different from other local boat shelters.

22. There are water hyacinths in the same area as the eelgrass and nearer to the shoreline. DEP has issued a permit to Mr. Hageman to clear such water hyacinths from a 25-foot swath in front of his property so as to keep clear the channel to his dock and boat shelter. The greater weight of the credible evidence is that Mr. Hageman has been zealous in his removal of water hyacinths and has exceeded the 25-foot limitation. Existence of this permit allowing Mr. Hageman to remove hyacinths and existence of this larger cleared swath of water/shoreline is not dependable evidence of the Hagemans' riparian rights claim and does not alter or affect DEP's determination that no aquatic plants will be seriously endangered by the Carter dock and boat shelter.

    
    

23. The parties stipulated that the construction of Carter's dock has not, and will not, degrade the water quality of Crescent Lake and that the water quality standards set forth in Chapter 62-302 F.A.C., are not violated because of the construction of the dock.

    
    

24. The parties stipulated that the Carter dock as constructed will not adversely affect the fishing or recreational value or marine productivity on Crescent Lake.

    
    

25. The parties stipulated that the dock as constructed will not adversely affect any historical or archaeological resources under the provisions of Section 267.061 F.S.

    
    

26. In determining whether a dock poses a navigational impediment, DEP looks for the presence of marked navigational channels and the proximity of the dock to other docks in the area. The credible competent evidence as a whole shows that the Carter dock is similar to the Hagemans' dock and is located about

    100 feet west of the Hagemans' dock. The Carter structure also conforms with the prevailing alignment of all docks in the immediate area and its distance from neighboring structures is sufficient so that the Carter dock will not present a hindrance to navigation. The greater weight of the credible evidence is that the Hagemans have sailed in and out from their adjacent dock without any obvious problems occasioned by the Carter dock. There is plenty of room between the Carter and Hageman docks so that the Carter dock has not so far obstructed the Hagemans' ability to navigate their sailboat.

    
    

27. Mr. Carter has provided reasonable assurances that his dock is not contrary to the public interest under Section 373.414 (1)(a) F.S.

    
    

28. In determining the cumulative impacts a project may have, the agency looks at the total impact of past, present and future projects on water quality and function in wetland systems. Mr. Wiley determined it is reasonable to expect other lakefront property owners will construct docks into the lake, but based on his experience and expertise, he concluded that Mr. Carter's project's long-term impact still will continue to be minimal.

    
    

29. The permit is appropriate and insures compliance with all applicable statutory and rule guidelines for dredge and fill permits.

    
    

30. Mr. Carter also applied to the agency for a consent of use for submerged state lands. This was appropriate because Crescent Lake is a "water of the state".

    
    

31. A consent of use is generally a letter of authorization for minor projects, such as single family docks, bulkheads and dredging that occur on

    state owned land and submerged land. The ten-to-one ratio found in Rule 18- 21.005(1)(a)2 F.A.C. allows an applicant to have ten square feet of preempted area for every linear foot of the shoreline that he owns. If an applicant meets the rule criteria, he is issued a consent of use. Generally, if an applicant exceeds the criteria, he would be issued a lease, as opposed to a consent of use.

    
    

32. The agency issued a consent of use to Mr. Carter on December 5, 1994. The Hagemans filed a petition challenging the consent of use.

    
    

33. DEP acts as staff for the Board of Trustees of the Internal Improvement Trust Fund. The authority to issue consents of use has been delegated to a planning manager. In the instant situation, that planning manager was Russell Price.

    
    

34. Russell Price is employed by DEP as planning manager of the submerged land section and has served in that capacity for two years. Mr. Price holds a Bachelor of Science degree in biology, has a year of education towards his Master's degree in biology, and has reviewed approximately two to three hundred applications for consents of use. Mr. Price was accepted as an expert in state lands determination and regulation. In issuing the consent of use to Mr. Carter, Mr. Price relied on his education, training and experience in state lands regulation, and considered the application, the drawings, the agency's regulatory permit section's field report, comments from staff of the Army Corps of Engineers and a memorandum from the agency's Bureau of Surveying and Mapping. See Finding of Fact 40.

    
    

35. Mr. Price opined, on behalf of the agency's interpretation of its own statute and rules, that the agency does not uniformly require a lease where the ten-to-one rule is minimally exceeded; that the agency will issue a consent of use if the applicant's structure is still relatively small and is configured in the minimum way possible to obtain access at reasonable water depths; that in its discretion, the agency does not apply the ten-to-one rule to require leases; 2/ and that consents of use are issued to single docks that are the minimum length necessary to reach reasonable access to navigable waters. Mr. Price issued the consent of use in this case after determining that Mr. Carter's dock as constructed was a single family dock configured in the minimum size and length necessary to achieve reasonable access to navigable waters and that the nearshore area located adjacent to Mr. Carter's upland property required that his dock exceed the ten-to-one ratio in order to access reasonable water depths for navigation. In so doing, Mr. Price relied on the DEP Permit Application Appraisal measurement of the water depth at the end of Carter's dock as 4.5 feet deep and analyzed the configuration and angle of the other docks in the area. This was in accord with the specific language of Rule 18-21.005(1)(a)1 F.A.C.

    3/

    
    

36. Evidence adduced at formal hearing suggests that there has been some erosion, possibly due to the removal of the water hyacinths and that shows that it is environmentally desirable to avoid recreational contact with the eelgrass, especially by boats. These factors also support the reasonableness of Carter's dock configuration, even though it minimally exceeds the ten-to-one rule.

    
    

37. Petitioners Hageman contended that their riparian rights may be determined by projecting a line straight waterward from the upland fence line between their lot and Mr. Carter's property. If that is the appropriate determination of their riparian rights, then the Carter dock does cross that projected line, but that projected line has not been placed by a surveyor or

    determined by a court of competent jurisdiction. At best, there has been a post erected by Mr. Hageman as the result of a prior lawsuit concerning easements.

    
    

38. Respondent Carter's property is narrower than Petitioners' property and somewhat wedge-shaped. Petitioners assert that because the lake curves, Mr. Carter's riparian rights form a narrow pie slice-shaped area in the water. However, without a legal determination to that effect, there is only the foregoing unsupported assertion concerning either landowner's riparian rights.

    
    

39. Although the agency's rules require a 25-foot setback of a dock (10- foot setback for marginal docks) from the applicant's riparian rights line, 4/ the agency does not measure the setback of a dock by that rule unless there has already been a determination of a riparian rights line by a court of law. DEP witnesses clearly enunciated and explicated agency policy that DEP does not affirmatively take it upon itself to determine riparian rights as between private land owners because the agency has no constitutional or statutory jurisdiction to do so. To Mr. Price's knowledge, the agency has never determined the riparian rights line of two private property owners. The agency relies on circuit courts to resolve those types of disputes.

    
    

40. In response to the Hagemans' concerns about encroachment on their asserted riparian rights and in an abundance of caution, Mr. Price sent aerial photographs, the county plat map, and the drawings submitted with Mr. Carter's application to the DEP's Bureau of Surveying and Mapping. He requested that the Bureau make a guesstimation of the common riparian rights line based on a methodology it has developed for estimating riparian rights lines. The memorandum constitutes little more than legal research discussing various methodologies courts have used in the past for determining riparian rights. It reaches no definite conclusion with regard to the riparian rights between the Hagemans and Carter. Beyond explaining and supplementing the direct evidence of the agency policy to rely on courts to determine riparian rights, its contents and conclusions are unreliable hearsay which is outside the parameters of Section 120.58(1)(a) F.S., because no one connected with the preparation of that report testified at formal hearing.

    
    

41. No reliable determination of the riparian rights line dividing the Petitioners' property and the property of Applicant/Respondent Carter was presented as evidence at formal hearing. DEP is not aware that any court determination specifically setting out the boundaries of the parties' riparian rights exists.

    
    

42. DEP did not require Mr. Carter to institute a lawsuit to establish riparian boundaries before considering his application. This also appears to be common agency procedure.

    
    

43. The agency addressed the absence of a clear showing of riparian rights and implemented its policy directed thereto in the standard language of the consent of use, which provided in pertinent part, as follows:

    
    

    2. Grantee agrees that all title and interest to all lands lying below the historical mean high water line or ordinary high water line are vested in the Board, and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof

    * * *

    5. Grantee agrees to indeminity, defend and hold harmless the Board and the State of Florida from all claims, actions, lawsuits and demands arising out of this consent.

    * * *

    12. In the event that any part of the structure(s) consented to herein is determined by a final adjudication issued by a court of competent jurisdiction to encroach on or interfere with adjacent riparian rights, Grantee agrees to either obtain written consent for the offending structure from the affected riparian owner or to remove the interference or encroachment within 60 days from the date of the adjudication. Failure to comply shall constitute a material breach of this consent and shall be grounds for its immediate termination.

    
    

    CONCLUSIONS OF LAW

    
    

44. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of all three cases. See, Section 120.57(1), F.S,

    
    

45. DEP's post-hearing proposal seems to concede at one point that DOAH has jurisdiction of Case No. 95-0158, the permit challenge, and reasserts DEP's motions to dismiss the petition challenging the consent order and the consent of use. However, its argument thereon confuses the case numbering, both by O.C.G. number and by DOAH number, and basically asserts that the Hageman petitions challenging the consent of use and the permit are each defective upon the issue of standing in that they have failed to adequately allege how the Petitioners' environmental interests are substantially affected by DEP's actions. The motions may be well-taken as to standing in all three cases, because each petition is weak upon the issue of standing, but absent some clearer argument, the motions to dismiss solely upon the content of the petitions are denied.

    
    

46. Lack of evidence of Petitioners' standing defeats the petitions. All three cases also fail upon their merits.

    
    

47. Petitioners challenged all three intended final agency actions upon grounds that their interests are affected because the Carter dock crosses their riparian rights line, violates the 25-foot setback criteria of Rule 18- 21.004(3)(d) F.A.C., also violates Rule 18-21.005(1)(a), and creates a navigational hazard.

    
    

48. Both parties herein seem to have lost sight of the concept that the term "riparian rights" normally refers to a landowner's access to a body of water; that is, ingress and egress to water from the landowner's upland property. "Riparian rights" do not constitute title to waters of the state and the lands submerged beneath them. Much of this concept revolves around an accurate determination of the mean high water mark or ordinary high water mark, which in this case was never clearly identified.

    
    

49. Be that as it may, the primary issue Petitioners seek to resolve is the relative real property interests between themselves and Carter. The instant administrative proceeding may not be utilized to resolve that issue or to establish the riparian rights line of Petitioners. Neither DEP, the Board of Trustees of the Internal Improvement Fund, nor DOAH has the authority or jurisdiction to determine issues of title or boundaries to real property. The

    determination of "all actions involving titles or boundaries or right of possession of real property" falls within the exclusive jurisdiction and constitutional power of the circuit courts of this state. See, Article V, Section 20(c)(3), Florida Constitution and Section 26.012 (2)(g) F.S. See, also, Buckley v. Department of Health and Rehabilitative Services, 516 So. 2d 1008 (Fla. 1st DCA 1988) and Biltmore Construction Company v. Florida Department of General Services, 363 So. 2d 851 (Fla. 1st DCA 1978).

    
    

50. That being the case, the agency was well within a reasonable interpretation of its own statute and rules when it declined to apply certain rules which require application of measurements from riparian rights lines where the riparian rights lines have not first been established by an court of competent jurisdiction. Agency personnel clearly explicated that such is the agency's policy and interpretation of the statute and agency rules. An administrative construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. See, Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). An agency's interpretation of its rules and statutes which it is charged to administer is to be given great deference. See, Griffith v. Department of Business Regulation, 613 So. 2d 930 (Fla. 3d DCA 1993); Maclen Rehabilitation Center v. Department of Health and Rehabilitative Services, 588 So. 2d 12 (Fla. 1st DCA 1991); Department of Business Regulation v. Martin County Liquors, Inc. 574 So. 2d 170 (Fla. 1st DCA 1991); Island Harbor Beach Club v. Department of Natural Resources, 405 So. 2d

    209 (Fla. 1st DCA 1986); Goldring v. Department of Environmental Regulation, 477 So. 2d 532 (Fla. 1985); and Public Employee Regulation Commission v. Dade County Police Benevolent Association, 467 So. 2d 987 (Fla. 1985).

    
    

51. Without a preliminary court determination of the parties' riparian rights, the Hagemans were unable to demonstrate substantial interests. They also failed to show that there was any navigational hazard.

    
    

52. The agency established that the consent order herein was a reasonable means of resolving Mr. Carter's violation of the dock exemption criteria and achieving compliance with existing dredge and fill statutory and rule regulations, and that the consent order, and ultimately the permit that arose from it, provided appropriate safeguards for the protection of the environment.

    
    

53. Applicant/Respondent Carter established that he has met all applicable statutory and rule criteria for the dredge and fill permit, including but not limited to, reasonable assurances that his project will not violate state water quality standards and will not be contrary to the public interest.

    
    

54. Petitioners argued that the consent of use is improper because the dock as constructed violates the ten-to-one rule and the 25-foot setback from their riparian rights line. The riparian rights preliminary requirement has been discussed, supra.

    
    

55. In order to be entitled to a consent of use, an activity need only meet the description of one of the activities listed in Rules 18-21.005(1)(a)1 through 18-21.005(1)(a)8 F.A.C. Here, it was affirmatively shown that the length, location, and width of the Carter dock is the minimum length and size necessary to provide reasonable access to navigable waters without impinging on environmental factors. This was a sufficient showing to qualify for the consent of use. See, Rule 18-21.005(1)(a)1. F.A.C.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Department of Environmental Protection enter a final order that dismisses the three petitions, ratifies the consent order, and issues the after- the-fact permit and consent of use with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights.

DONE and RECOMMENDED this 7th day of July, at Tallahassee, Florida.

ELLA JANE P. DAVIS

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 7th day of July, 1995

ENDNOTES

1/ There is consensus in the testimony that the Hageman property is "east" of the Carter property. Some DEP materials which originally indicated it to be "south" of the Carter property have been edited to read "east". Others have not. The recommended order has been written on the assumption those exhibits still reading "south" really meant "east".

2/ Rule 18-21.005(1)(a) 2. F.A.C., requiring leases, applies to "Docks . . . or other activities which preempt no more than 1000 square feet of sovereignty land area for each 100 linear feet of shoreline in the applicant's ownership (see "preempted area" definition Rule 18-21.003(36) F.A.C.). Proportional increases in the 1,000 square foot threshold can be added for fractional shoreline increments over 100 linear feet."

3/ Rule 18-21.005(1)(a)1. F.A.C. reads in pertinent part: "Consent of Use is required for the following activities, A single dock or access channel which is no more than the minimum length and size necessary to provide reasonable access to navigable water."

4/ Rule 18-21.004(3)(d) F.A.C. reads in pertinent part, "All structures and other activities must be set back a minimum of 25 feet from the applicant's riparian rights line. Marginal docks may be set back only 10 feet. There shall be no exceptions to the setbacks unless the applicant's shoreline frontage is less than 65 feet or a sworn affidavit of no objection is obtained from the affected adjacent upland riparian owner, . . . . [It is noted that there was no discussion by anyone as to whether the Carter dock might be "marginal."]

APPENDIX TO RECOMMENDED ORDER

DOAH CASES NO. 94-6794, 95-0158, & 95-0955

The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF)

Hagemans' PFOF:

1-2 Covered in Finding of Fact 6 only to the degree supported by the record.

3, 6-7 Rejected as hearsay and non-probative even within Section 120.58 (1)(a) F.S.

1. Rejected in part as subordinate to the facts as foundand in part as legal argument

2. Rejected as mischaracterizing the evidence as a whole by relying on only one portion. See Finding of Fact 21

1. Covered in Finding of Fact 20 and the Conclusions of Law.

2. Rejected as subordinate to the facts as found. Relies only on the testimony quoted, not on the greater weight of the credible competent evidence as a whole.

3. Rejected as subordinate to the facts as found and as containing legal argument and/or facts outside the record.

4. Covered in substance within the recommended order, but not accepted as a finding of fact because it mixes legal argument and isolated testimony and misconstrues elements of the case law that agencies have great latitude in interpreting the statutes and rules under which they operate and their interpretations are entitled to great weight.

5. Covered in substance in Finding of Fact 10, otherwise unnecesary as merely legal argument or a statement of position

6. Covered in the Preliminary Statement

The remainder of the proposal is treated as proposed conclusions of law or mere legal argument for which rulings pursuant to Section 120.59 (2) F.S. are not necessary.

Respondent Carter's PFOF:

1-5 Contain mixed legal argument and proposed facts contrary to rule.

The legal argument is rejected. Respondent DEP's PFOF:

1-15, 17-56,

60-62 [Note: there are two # 28's.] Accepted, except that unnecessary, subordinate and/or cumulative material has not been adopted. Interspersed legal argument has also been rejected

16 Rejected as not fully a fact proposal. Covered in part in the Findings of Fact and in part in the Preliminary Statement and Conclusions of Law

57-59 Accepted in part and rejected in part for the reasons stated in the recommended order, including the fact that the exhibit discussed was admitted only for limited purposes. See TR-169-170, 182).

COPIES FURNISHED:

Leo J. Hageman

Rt. 1 Box 228 Paradise Lane Crescent City, Florida 32112

Robert M. Carter 3906 Alcazar Avenue

Jacksonville, Florida 32207

Kathleen Toolan, Esquire Christine Stretsky, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Kenneth Plante

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

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 ENVIRONMENTAL PROTECTION

LEO J. HAGEMAN AND RENATE HAGEMAN,

Petitioners,

OGC Case No. 94-2443

vs. DOAH Case No. 94-6794

DEPARTMENT OF ENVIRONMENTAL PROTECTION and ROBERT M. CARTER,

Respondents.

/ LEO J. HAGEMAN AND RENATE HAGEMAN,

Petitioners,

OGC Case No. 94-3710

vs. DOAH Case No. 94-0158

DEPARTMENT OF ENVIRONMENTAL PROTECTION and ROBERT M. CARTER,

Respondents.

/ LEO J. HAGEMAN AND RENATE HAGEMAN,

Petitioners,

vs. DOAH Case No. 95-0955

DEPARTMENT OF ENVIRONMENTAL PROTECTION and ROBERT M. CARTER,

Respondents.

/

FINAL ORDER

On July 7, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted her Recommended Order to the Department of Environmental Protection. (hereafter "Department"). Copies of the Recommended Order were also served upon Petitioners, Leo J. Hageman and Renate Hageman (hereafter "Petitioners") , and upon Respondent, Robert M. Carter (hereafter "Carter"). A copy of the Recommended Order is attached as Exhibit A.

On July 21, 1995, Petitioners filed pro se a letter containing objections to the Recommended Order. The objections in this pro se letter were treated as properly filed exceptions to the Recommended Order under Rule 62-103.200(1), Florida Administrative Code. Exceptions to the Recommended Order were also

filed on behalf of the Department on July 21, 1995. No exceptions were filed on behalf of Carter and no responses were filed to the exceptions of Petitioner or of the Department. The matter is now before the Secretary of the Department for final agency action.

BACKGROUND

Carter has constructed a single family dock adjacent to and in the waters of Crescent Lake in Putnam County, Florida. On June 1, 1994, Carter was granted an exemption by the Department to construct a dock of less than 1000 square feet in surface area as authorized by Rule 62-312.050(1)(d), Florida Administrative Code. A compliance inspection by Department staff revealed that the completed dock structure exceeded the exemption surface area limitation. This violation by Carter of the dock exemption maximum size requirements resulted in a subsequent enforcement action by the Department culminating in the entry of a Consent Order on August 16, 1994, in OGC Case No. 94-2443. (Joint Ex. 3) Petitioners then filed a petition for a formal administrative hearing to challenge the propriety of the Consent Order.

As a result of the Consent Order, Carter filed an application with the Department for an after-the-fact permit for the constructed dock. On November 16, 1994, the Department issued a notice of intent to issue to Carter permit number 542558842 authorizing construction of the dock, subject to specified general and specific conditions. (Joint Ex. l) Petitioners filed another petition challenging the issuance of this after-the-fact permit.

Carter also applied for a consent of use of sovereign submerged lands authorizing the existence of his dock in the waters of Crescent Lake. Pursuant to a letter dated December 5, 1994, the Department notified Carter of its intent to grant an after-the-fact consent of use for the dock structure. (Joint Ex.

2). Petitioners subsequently filed a timely challenge to the consent of use and requested a formal administrative hearing.

Petitioner's three administrative challenges to Carter's dock structure were consolidated by DOAH for formal hearing. A formal administrative hearing was held on April 10, 1995, in Jacksonville, Florida, before DOAH Hearing Officer Ella Jane P. Davis ("Hearing Officer") Proposed Recommended Orders were filed by the parties after the completion of the formal hearing and the Hearing Officer's Recommended Order was entered on July, 7, 1995.

The Hearing Officer rejected all of Petitioners' claims and concluded that Carter's dock structure complied with the applicable water quality standards for permitting and the Department rule criteria for granting a consent of use for sovereignty lands. The Hearing Officer also upheld the propriety of the Consent Order entered in OGC Case No. 94-2443. The Hearing Officer ultimately recommended that the Department enter a Final Order ratifying the Consent Order, issuing to Carter the after-the-fact permit and consent of use, "with the safeguards already contained therein to protect the Petitioners' riparian rights in case the Petitioners hereafter obtain a circuit court determination of those riparian rights." (Rec. Order, p. 21)

STANDARDS OF REVIEW

Exceptions to the Recommended Order have been filed by the Petitioners and the Department. As a preface to the following rulings on these exceptions, it is appropriate to comment here upon the standards of review imposed by law on agencies reviewing recommended orders of hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. The findings of fact of a hearing officer, however, may not be rejected or modified, unless the agency determines from a review of the complete record that such findings were not based on competent substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e. g., Martuccio v. Dept. of Professional Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993); Freeze v. Dept. of Business Regulation,

556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987)

If the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is usually bound by such finding. Florida Department of Business Regulation v. Bradley, sura, at 1123. At the review level, however, the agency head is free to exercise his or her judgment and reject the hearing officer's conclusions of law. See, e.g., MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)

RULINGS ON PETITIONERS' EXCEPTIONS

Exception as to Hearing Officer's Recommendation

The first exception set forth in Petitioners' letter is that the Hearing Officer's recommendations on page 21 of the Recommended Order favorable to Carter have erroneously shifted the burden of proof to Petitioners and should be reversed. This contention of Petitioners is without merit. The case law of Florida does hold that in a formal administrative hearing under section 120.57, Florida Statutes, a permit applicant has both the initial burden of going forward with the evidence and the ultimate burden of proving entitlement to the permit by a preponderance of evidence. See, e. g., Young v. Department of Community Affairs, 625 So.2d 831, 835 (Fla. 1993); Metropolitan Dade County v.

Coscan Florida, Inc., 609 So.2d 644, 646 (Fla. 3d DCA 1992); Florida Dept. of Transportation v. J.W.C. Co. Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). The Hearing Officer concluded in paragraphs 51 through 55 of the Recommended Order that these evidentiary burdens have been fulfilled in these consolidated proceedings. The critical conclusions of the Hearing Officer in paragraphs 51 through 55 appear to be valid legal conclusions based on competent substantial evidence of record and are affirmed. Consequently, Petitioners' exception related to the Hearing Officer's recommendations on page 21 of the Recommended Order is denied.

Finding of Fact 9

The next exception set forth in Petitioners' letter relates to that portion of the Hearing Officer's Finding of Fact 9 finding that Carter's dock was built "approximately 35 feet from the Hagemans' property line". The challenged finding of the Hearing Officer appears to be based on competent substantial evidence of record and is affirmed. (Tr. 97; DEP Ex. 1,) Thus, this exception of Petitioners is denied.

Finding of Fact 10

The fourth paragraph of the Petitioners' letter refers to "finding 10".

The Hearing Officer's Finding of Fact 10 relates to the property line issue and essentially sets forth the Petitioners' positions in these proceedings. This summary of Petitioners' positions on the property line issue seems to fairly reflect the essence of Petitioners' opening statement at the DOAH final hearing. (Tr. 33) In addition, the Petitioners' objections essentially consist of legal argument rather than factual disputations. Accordingly, this exception to Finding of Fact No. 10 is denied.

Finding of Fact Nos. 21, 22 and 26

In paragraphs six, seven and eight of their letter, Petitioners take issue with the Hearing Officer's Findings of Fact 21, 22, and 26. Petitioners characterize these respective findings of the Hearing Officer as "inaccurate", a "distortion of the truth," having "nothing to do with the DEP permit", and as being based on "one time observations by laymen". Petitioners fail to cite to the transcript of testimony or to any other specific evidence of record arguably supporting their objections to these factual findings of the Hearing Officer.

The challenged factual findings in paragraphs 21, 22, and 26 of the Recommended Order appear to based primarily upon the DOAH final hearing testimony of Carter's witnesses Kenneth Krentz and his wife Mary Ann Krentz, and the Department's witness Thomas Wiley. (Tr. 56-83; 130-158) Kenneth and Mary Ann Krentz were factual witnesses apparently residing on nearby property having frontage on or a view of Crescent Lake. (Tr. 57) Mr. Wiley, accepted by the Hearing Officer as an expert on the Department's environmental resource permitting procedures, was the field inspector for the dock permit application and prepared the Permit Application Appraisal. (Tr. 133-134; DEP Ex. l)

Findings of Fact 21, 22,and 26 reflect the weight given and credibility accorded by the Hearing Officer to the testimony of Mr. and Mrs. Krentz and Mr. Wiley at the DOAH final hearing. As noted in the Standards of Review above, Florida law imposes substantial limitations on the authority of an agency to reject or modify the findings of fact of a hearing officer. The agency reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts.

Martuccio, at 622 So.2d 609; Heifetz v. Dept. of business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985)

A reviewing agency is also not free to modify the findings of fact in a recommended order to fit a conclusion desired by it or by a party by interpreting the evidence or drawing inferences there from in a manner different from the interpretations made and inferences drawn by a hearing officer. Id. at 1281-1282.

Furthermore, that portion of Petitioners' exceptions questioning the relevance and materiality of evidence admitted at the DOAH formal hearing seem to raise issues within the sound prerogative of the Hearing Officer as they are "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations". Martuccio, at 609; Heifetz, at 1281. In view of the above, Petitioners' exceptions to the Hearing Officer's Findings of Fact 21, 22, and 26 are denied.

Finding of Fact 37

In the second paragraph on page two of their letter, Petitioners take issue with the Hearing Officer's findings concerning the lack of record evidence of a settled boundary line established by a surveyor or by a court separating their real property from the property owned by Carter. 1/ Petitioners refer to a boundary survey allegedly made In 1982, but do not cite to any testimony or documentary evidence of record supporting this assertion. The Hearing Officer made a related finding in paragraph 41 of the Recommended Order that "[n]o reliable determination of the riparian rights line dividing the Petitioners' property line and the property of Applicant/Respondent Carter was presented at the formal hearing," which was not challenged by Petitioners.

A review of the record fails to demonstrate that these factual interpretations made and inferences drawn by the Hearing Officer in Finding of Fact 37 concerning lack of an established boundary line between the real property of the Petitioners and Carter are not based on competent substantial evidence. (Tr. 65-82) Therefore, Petitioners' exception as to the Hearing Officer's Finding of Fact 37 is denied.

RULINGS ON DEPARTMENT'S EXCEPTIONS

Hearing Officer's Proposed Recommendations

The Department contends that the recommendations of the Hearing Officer are deficient in that they fail to include the recommendation that the petitions should be denied on their merits. The Department's exception points out the seeming inconsistency between the Hearing Officer's Conclusions of Law 45 and

1. In Conclusion of Law 45, the Hearing Officer denies the Department's motions to dismiss the three petitions for lack on standing, even though conceding that the petitions were "weak on the issue of standing". In Conclusion of Law 46, however, the Hearing Officer concludes that "[l]ack of evidence of Petitioners' standing defeats the petitions."

   
   

   The Hearing Officer's conclusion in the first sentence of paragraph 46 seems to be based on the premise that standing of a party to challenge an agency action in a formal administrative proceeding is a matter to be proven at the final hearing. However, the failure of parties challenging permits to ultimately prove their contentions at a formal evidentiary hearing is not to be confused with their failure to demonstrate the necessary potential injury to confer standing by sufficient averments in their petitions or other prehearing pleadings. 2/

   
   

   The Department's exception correctly notes that the Petitioners were allowed to present their claims in all three consolidated cases at the formal hearing, and that the Hearing Officer made detailed findings and conclusions on the merits of all of Petitioners' claims in these cases. The Hearing Officer ultimately concluded that:

   
   

   1. There was not any "navigational hazard" created by Carter's dock. (Recommended Order, paragraph 51)

      
      

   2. The Consent Order entered into between the Department and Carter was reasonable. (Recommended Order, paragraph 52)

   3. Carter had provided reasonable assurances that his as built dock would not violate applicable water quality standards. (Recommended Order, paragraph 53)

      
      

   4. There was a sufficient showing that the Carter was entitled to the consent of use. (Recommended Order, paragraphs 54-55)

These conclusions of the Hearing Officer rejecting Petitioners' claims on their merits have been previously affirmed in this Final Order in the prior rulings denying Petitioners' exceptions. Consequently, this exception of the Department is granted.

Consent Orders

The Department also takes exception to the Hearing Officer's finding in paragraph 15 of the Recommended Order that "negotiated consent order of this type are a standard agency procedure to resolve minor permitting violations." (emphasis supplied) This exception of Department also appears to be well-taken. The Department contends that the evidence of record demonstrates that consent orders are not limited just to minor violation cases, but are used as a settlement tool to resolve violation charges in all types of enforcement cases. This finding of the Hearing Officer is expressly based on the hearing testimony of the Department's expert witness Stephen Piemiller. A review of the transcript reflects that Mr. Piemiller's testimony does not limit the Department's use of consent orders only to cases involving "minor" permitting violations. (Tr. 108, 120-121) Thus, this exception of the Department is granted.

10:1 Rule

In this exception, the Department contends that there is no competent substantial evidence of record to support that portion of the Hearing Officer's Finding of Fact 35 asserting "that in its discretion, the agency does not apply the ten-to-one rule 3/ to require leases". (emphasis supplied) This challenged finding of the Hearing Office is apparently based on the expert testimony of the Department's witness Russell Price. In fairness to the Hearing Officer, the questions to and answers of Mr. Price on pages 163-165 of the transcript are somewhat confusing in that references to both leases and consents of use of sovereignty lands are intermingled. The "ten-to-one" rule, however, is not even included in the criteria for granting a "lease" on larger dock projects under Rule 18-21.005(1)(b), Florida Administrative Code. Thus, it is difficult to conclude that the Hearing Officer's challenged interpretation of this portion of Mr. Price's testimony is so unreasonable as to warrant rejection or modification based on the ground of not being supported by any competent substantial evidence of record. 4/

Consequently, this exception of the Department is denied.

CONCLUSION

The Hearing Officer's conclusion that the primary issue raised by Petitioners in all three of these administrative proceedings deals with their real property interests is well-founded. (Recommended Order, paragraph 49) All three petitions assert that Carter's dock encroaches upon their riparian rights boundary line. 5/ The Hearing Officer also correctly ruled in Conclusion of Law

49 that an administrative proceeding is not the proper forum to resolve disputes related to real property interests. See Buckley v. Dept. of Health and

Rehabilitative Services, 516 So.2d 1008, 1009 (Fla. 1st DCA 1988). The circuit courts of this state have exclusive jurisdiction over "all actions involving titles or boundaries or right of possession of real property". See Art. V, Sec. 20(c)(3), Fla. Const.; Section 26.012(2)(g), Florida Statutes. The Petitioners should seek appropriate relief from the Putnam County Circuit Court as to their property line dispute with Carter.

It is therefore ORDERED:

1. Finding of Fact 15 is modified by deleting the word "minor" from the last line of page seven of the Recommended Order.

   
   

2. Conclusion of Law 46 is modified to read as follows:

   
   

   46. All three cases fail upon their merits.

   
   

3. The Hearing Officer's Recommendation is modified by inserting the word "denies" in lieu of the word "dismisses" on line 19 of page 21 of the Recommended Order.

   
   

4. The Recommended Order of the Hearing Officer, as modified in paragraphs A, E, and C above, is adopted and incorporated by reference herein.

   
   

5. The Consent Order between the Department and Carter entered in OGC Case No. 94-2443 on August 16, 1994, is RATIFIED AND APPROVED.

   
   

6. Permit number 5452558842 proposed for issuance by the Department to Carter on November 16, 1994, is hereby ISSUED, subject to the conditions set forth in the permit.

   
   

7. The consent of use dated December 5, 1994, for the sovereign submerged lands underlying Carter's dock structure is GRANTED, subject to the conditions set forth therein.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 21st day of August, 1995 in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Fl. 32399-3000

FILING AND ACKNOWLEDGMENT: FILED, on this date, pursuant to Section 120.52, Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

ENDNOTES

1/ The Petitioners did attempt to enter a document into evidence purporting to be a true copy of a final judgment determining the boundaries of their property. (Tr. 198-206). The Hearing Officer ruled that this document had not been properly identified and authenticated and was inadmissible.

2/ In the case of Village Park v. State, Dept. of Business, 506 So.2d 426 (Fla. 1st DCA 1987), the court rendered a lengthy opinion discussing the holding in Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). The court concluded on page 433 of the Village Park opinion that a petitioner can satisfy the injury-in-fact standard set forth in Agrico by "demonstrating in his petition either: (1) that he had sustained actual injury in fact at the time of filing his petition; or (2) that he is immediately in danger of sustaining some direct injury as a result of the challenged agency's action." (emphasis supplied) Thus, it is the sufficiency of the allegations in the petitions that determine standing in administrative proceedings, not the ultimate sufficiency of the evidence at the formal hearing. The Petitioners' allegation that Carter's dock creates a "navigation hazard" with respect to their boating activities appears to to be at least a minimum demonstration of injury to confer standing in these cases. See, Section 373.414(1)(a)3, Florida Statutes.

3/ The "ten-to-one" rule refers to the criteria in Rule 18-21.005(1)(a)2, Florida Administrative Code, entitling applicants to a consent of use of sovereignty submerged lands for activities " which preempt no more than 1,000 square feet of sovereignty lands for each 100 linear feet of shoreline in the applicant's ownership".

4/ In any event, it is uncontroverted that the consent of use of sovereignty lands was proposed to be granted to Carter based on the determination by Department staff of the applicability of the criteria set forth in Rule 18- 21.005(1)(a)l, Florida Administrative Code. This rule criteria authorizes a consent of use for a "single dock or access channel which is no more than the minimum length and size necessary to provide reasonable access to navigable water."

5/ The only significant non-property issue raised by Petitioners in these proceedings is their claim that Carter's dock creates a "navigational hazard". This claim was rejected by the Hearing Officer in Finding of Fact 26 and Conclusion of Law 51, which finding and conclusion have been affirmed in this Final Order.

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Leo J. Hageman

Rt. 1 Box 228 Paradise Lane Crescent City, Florida 32112

Robert M. Carter 3906 Alcazar Avenue

Jacksonville, Florida 32207 and by hand delivery to:

Ella Jane P. Davis Ann Cole, Clerk

Hearing Officer Division of Administrative Hearings Division of Administrative The DeSoto Bldg.

Hearings 1230 Apalachee Pkwy

The DeSoto Bldg. Tallahassee FL 32399-1550 1230 Apalachee Pkwy

Tallahassee Florida 32399-1550

Kathleen Tooian, Esquire Christine Stretsky, Esquire

Department of Environmental Protection 3900 Commonwealth Building

Tallahassee Florida 32399-3000 on this 22nd day of August, 1995.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000

Telephone: (904) 488-9314

Docket for Case No: 94-006794

Orders for Case No: 94-006794