STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR B. CHOATE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1113

) VROOM INTERNATIONAL, ET AL., ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was held on the above matter by H.E. Smithers on September 4, 1980, at Plantation Key, Florida.

APPEARANCES

For Petitioner: Richard H.M. Swann, Esquire

GASTON, SNOW, ET AL.

2809 Ponce de Leon Boulevard, Suite 550 Coral Gables, Florida 33134

For Respondent: H. Ray Allen, Esquire (DER) Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Fred Tittle, Esquire (Vroom) Post Office Drawer 535

Tavernier, Florida 33070 STATEMENT OF THE ISSUES

Whether Respondent, Department of Environmental Regulation, should issue a permit to Respondent, Vroom International, for the construction

This action commenced with the filing by Respondent, Vroom International, Inc. (Vroom) with the Department of Environmental Regulation (DER) of an application for a permit to construct a 425-foot-long private pier for a condominium in Islamorada. On May 19, 1980, DER gave notice of its intent to issue the permit, and Arthur B. Choate (Petitioner or Choate), an adjoining property owner, filed his timely objection and request for formal hearing. The Petitioner contends that the permit should be denied since Vroom had not obtained the necessary approval to place the pier on State submerged lands and that the construction of the pier "would impact adversely upon the aquatic and marine natural resources and water quality and navigation in the area."

(Petitioner's Recommendations contained in its Proposed Findings and Conclusions).

Although this case is styled "Choate" as the Petitioner, the parties agreed that co-Respondent, Vroom, has the burden of proof. The issue is whether or not DER should issue the requested permit to Vroom.

At the hearing, DER presented the testimony of two of its employees and Exhibits R #1-8, Vroom presented the testimony of a Vroom representative and the contracting builder of the pier, and the Petitioner testified.

Petitioner's proposed findings of fact have been included in this Recommended Order, except for those that were irrelevant, immaterial or conclusory statements. Proposed findings were due on September 19th; therefore, Vroom's, received on October 14th, are considered late filed.

FINDINGS OF FACT

1. Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south.

   
   

2. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met:

   
   

   1. Construction shall not be initiated until Department of Natural Resources' approval is received.

   2. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor.

   3. There shall be no fuel nor sewage pump-out facilities.

   4. No live-aboards shall be permitted.

   5. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas.

      
      

      Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7).

3. DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish.

   
   

4. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.

   
   

   CONCLUSIONS OF LAW

   
   

5. Rule 17-4.29, Florida Administrative Code, implementing Section 253.123, Florida Statutes (1979), and Rules 17-4, Part I, 17-3.05 and 17-3.09, Florida Administrative Code, implementing Chapter 403, Florida Statutes (1979), govern applications for permits to construct piers. Rules 17-3.05 and 17-3.09, Florida Administrative Code, specify water quality standards that must be maintained. Rule 17-4.29(6), Florida Administrative Code, provides:

   
   

   The department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

   
   

   1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest; and

      
      

   2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.

      
      

      The applicant has provided reasonable assurances that its proposed pier will not adversely affect water quality in the area, will not substantially impact marine

      vegetation or marine animal habitat, and will not create a navigational hazard or serious impediment to navigation.

      
      

6. The Petitioner contends that DER is prohibited from issuing this permit for the use of the submerged lands not owned by Vroom until approval is furnished DER by the Department of Natural Resources (DNR), pursuant to Section 253.77, Florida Statutes (1977). However, this is a literal and strained interpretation of that law considering Rule Chapter 16C-12, Florida Administrative Code, and the recent amendment of that statute by Chapter 80-66, Laws of Florida (1980). Obviously, DNR approval, if acquired, must be obtained prior to exercising DER's authorization, and DER's intent to issue did contain that condition.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters.

DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida.

HAROLD E. SMITHERS

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980.

COPIES FURNISHED:

Richard H.M. Swann, Esq. GASTON, SNOW, ET AL.

2809 Ponce de Leon Boulevard Suite 550

Coral Gables, FL 33134

H. Ray Allen, Esq. Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32301

Fred Tittle, Esq.

Post Office Drawer 535 Tavernier, FL 33070

Vroom International, Inc. c/o John P. Wilson

Upper Keys Marine Construction

1. Box 18AAA

   Key Largo, FL 33037

   
   

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

   AGENCY FINAL ORDER

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

   
   

   BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   AUTHUR B. CHOATE,

   
   

   Petitioner,

   
   

   vs. CASE NO. 80-1113

   
   

   VROOM INTERNATIONAL, et al.,

   and STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondents.

   /

   
   

   
   

   FINAL ORDER

   
   

   BY THE DEPARTMENT:

   
   

   On October 16, 1980, the duly appointed hearing officer in the above-styled matter submitted to the Department and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law and a Recommended Order. A copy of said Order is attached hereto as Exhibit "A".

   
   

   Pursuant to Section 17-1.68, Florida Administrative Code, and Section 120.57(1)(b)8., Florida Statutes, all parties were allowed ten (10) days in which to submit exceptions to the hearing officer's Recommended Order. No exceptions have been timely filed by the Petitioner, but Respondent, Department of Environmental Regulation, timely filed exceptions with the Secretary of the Department on October 27, 1980. The Recommended Order and Exceptions thereafter came before me, as head of the Department, for final agency action in this matter.

   
   

   In its Exceptions, Respondent contends that the applicant has not complied with Section 253.77(1), Florida Statutes. That section provides:

   
   

   1. No deportment, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit; license, or

other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees or the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use.

(Emphasis supplied)

The applicability of this section to the instant case was recognized by the hearing officer. However, the hearing officer concluded that a permit could be issued subject to the condition that the applicant obtain approval pursuant to Section 253.77, Florida Statutes, prior to construction. This conclusion is rejected, for it is inconsistent with Section 253.77, Florida Statutes, and prior Department practice. See C. H. Waites v. Jeff Taylor and Dept. of Environmental Regulation, DOAH Case No. 79-2286 (Final Order entered April 22, 1980); J.W.C. Company, Inc. v. Dept. of Environmental Regulation and Dept. of Transportation, DOAH Case No. 76-832 (Final Order entered January 15, 1979) and Sanibel-Captiva Conservation Foundation, Robert Rauschenberg and Florida Audubon Society v. Dept. of Environmental Regulation and Mariner Properties, Inc., DOAH Case No. 78-2422 (Final Order entered May 23, 1979).

See generally, Love v. Dept. of Environmental Regulation, DOAH Case No. 78-

279 (1978); Johnstone v. Dept. of Environmental Regulation, DOAH Case No. 76- 2127 (1977); Lauthian v. Dept. of Environmental Regulation, DOAH Case No. 76- 1960 (1977).

Section 253.77(1), Florida Statutes, authorization is required before the Department can issue a permit for the proposed pier to be constructed on sovereign submerged lands. See Crystal River Protective Association Inc., et al. v. Dept. of Environmental Regulation and Central Development Co., DOAH Case No. 76-1102 (Final Order entered November 3, 1977); Crystal River Protective Association, Inc., et al. v. Dept. of Environmental Regulation, Florida Power Corp. and Central Development Co., DOAH Case No. 76-1103 (Final Order entered November 3, 1977); Sanibel-Captiva, supra and C. H. Waites, supra.

The applicant has not shown that it has received the requisite approval of the Board of Trustees of the internal Improvement Trust Fund, to satisfy Section 253.77(1), Florida Statutes. Nor does the hearing officer's Recommended Order reflect any such approval.

ORDER

WHEREFORE, upon consideration of the DOAH Recommended Order, dated October 16, 1980, submitted in this cause, together with the record presented and all subsequent exceptions, and for the reasons above given it is hereby

ORDERED that:

1. The Findings of Fact contained in the hearing officer's Recommended Order (Exhibit "A") be, and hereby are, adopted and approved.

   
   

2. To the extent any Conclusion of Law contained in the hearing officer's Recommended Order (Exhibit "A") conflicts with, or is inconsistent with this Final Order, each is hereby expressly rejected, and so modified. All remaining Conclusions of Law entered by the hearing officer be, and hereby are, adopted and approved.

   
   

3. The exceptions filed to the hearing officer's Recommended Order (Exhibit "A") be, and hereby are, disposed of in accordance with this Final Order,

   
   

4. The Recommendation of the hearing officer contained in the Recommended Order be, and hereby is, rejected.

Accordingly, it is ORDERED that permit application no. 44-28401-5E be approved, but the permit shall not be issued until approval of the Department of Natural Resources has been obtained. The permit applicant is directed to obtain the written approval of the Department of Natural Resources for the proposed activity and submit it to the Department's South Florida District Office at 2269 Bay Street, Fort Myers, Florida 33901. The District Office is directed to issue the requested permit to Respondent, Vroom International, Inc., c/o John Wilson, within twenty (20) days of receipt by the Department of the approval of the Department of Natural Resources.

DONE AND ENTERED this 25th day of November 1980 in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JACOB D. VARN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-4807

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by United States Mail to HAROLD E. SMITHERS, Hearing Officer, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304; RICHARD H. M. SWANN, ESQ., 2809 Ponce de Leon Boulevard, Suite 550, Coral Gables, Florida 33134; VROOM INTERNATIONAL, INC., c/o John P. Wilson, Upper Keys Marine Construction, Post Office Box 18AAA, Key Largo, Florida 33037 and FRED TITTLE, ESQ., Post Office Drawer 535, Tavernier, Florida 33070 on this 26th day of November 1980.

H. RAY ALLEN

Assistant General Counsel

State of Florida, Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

Docket for Case No: 80-001113

Orders for Case No: 80-001113