STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN KOBLICK and TONYA KOBLICK, )

)

Petitioners, )

)

vs. ) CASE NO. 92-0551

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

) IAN KOBLICK and TONYA KOBLICK, )

)

Petitioners, )

)

vs. ) CASE NO. 92-1693

)

BOARD OF TRUSTEES OF THE )

INTERNAL IMPROVEMENT FUND )

OF THE STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled cases on November 19, 1992, in Key Largo, Florida.

APPEARANCES

For Petitioner: Andrew M. Tobin, Esquire

Mattson & Tobin Post Office Box 586

Key Largo, Florida 33037

For Respondent: Suzanne B. Brantley

John W. Costigan, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioners' application for consent to construct a private dock within John Pennekamp Coral Reef State Park should be approved.

PRELIMINARY STATEMENT

This is a proceeding brought under the provisions of Section 120.57(1), Florida Statutes, to challenge respondents' denial of petitioners' application for authorization to build a private dock on sovereign submerged lands contiguous to their upland property in Key Largo, Monroe County, Florida. As proposed, the subject dock would be located within the boundaries of John Pennekamp Coral Reef State Park.

At hearing, petitioners called as witnesses: Ian Koblick, the applicant; Pete Mallison, the director of the Division of State Lands, Department of Natural Resources; and George Jones, park manager, John Pennekamp Coral Reef State Park. Petitioners' exhibits 1, 2, 3A, 3B, A-P, P1-P5, Q-W, W1, X-Z, AA-HH and JJ-NN were received into evidence. Respondents did not call any additional witnesses, and their exhibits 1-5, 7 and 10-12 were received into evidence.

Additionally, the parties stipulated that:

There are no biological, environmental or scientific issues in this case or any appeals therefrom . . . .

The transcript of hearing was filed November 30, 1992, and the parties were granted thirty days from such date to file proposed findings of fact.

Consequently, the parties waived the requirement that a recommended order be rendered within 30 days after the date on which the transcript is filed. Rule 60Q-2.031(2), Florida Administrative Code. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

The parties

1. Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for the people of the state.

   
   

2. Respondents are the Department of Natural Resources (DNR) which, pertinent to this case, includes the Division of State Lands and the Division of Recreation and Parks; and, the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) which is comprised of the Governor and Cabinet, who are also the agency head of the Department of Natural Resources. Sections 20.25, Florida Statutes.

   
   

3. The Division of State Lands performs all staff duties for the Board of Trustees related to acquisition, administration and disposition of state lands, and the Division of Recreation and Parks is charged with the duty to supervise, administer, regulate, control, preserve and maintain all public parks held by the state. Sections 253.01 and 258.004, Florida Statutes.

   
   

   The application

   
   

4. On January 29, 1988, petitioners submitted a joint application to the Department of Environmental Regulation (DER) and the Department of the Army, Corps of Engineers (Corps), to construct a private single-family dock on the

   sovereign submerged lands contiguous to their property. Thereafter, on February 10, 1988, a copy of the application was likewise filed with the Division of State Lands, presumably by DER in conformance with Section 253.77, Florida Statutes, since the project involved construction on state lands.

   
   

5. According to the application, the proposed dock would measure 70 feet in length and 4 feet in width, and include one boat slip measuring 30 feet in length and 9 feet in width. Petitioner Ian Koblick proposed to dock his personal boat at such facility, and to use such boat for, inter alia, commuting to and from work. Construction of the dock does not, however, bear any relationship to petitioner's ability to access their property, since their property is accessible by road.

   
   

6. On February 3, 1988, DER notified petitioners that their application was exempt from its dredge and fill permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and on April 27, 1988, the Corps notified petitioners that their project was authorized by a Department of the Army general permit, issued under the authority of Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 U.S.C. 403), which allowed the construction of private single-family piers in navigable waters of the United States under certain conditions. In the interim, by letter of February 22, 1988, DNR's Division of State Lands advised petitioners that their project would require approval pursuant to Chapter 253, Florida Statutes (presumably Section 253.77, Florida Statutes), and that since the project was located within John Pennekamp Coral Reef State Park, it might be affected by comments requested of DNR's Division of Recreation and Parks.

   
   

7. Following a delay occasioned by DNR's study of dock and fill encroachments within John Pennekamp Coral Reef State Park, discussed infra, the Division of State Lands, by letter of March 9, 1989, advised petitioners that:

   
   

   . . . The fundamental problem with your dock application lies in the fact that the proposed structure falls within the boundaries of John Pennekamp Coral Reef State Park. Pursuant to Florida Administrative Code 16D-2.011(3), construction activities of any kind are prohibited within Pennekamp Park unless initiated by the Division of Recreation and Parks . . .

   
   

   I understand that . . . our Florida Keys Field Office is presently preparing a package for submittal to Tallahassee so that a final response of your request can be made . . . .

   
   

   Thereafter, following the Board of Trustees' resolution of the encroachment issue, discussed infra, the Division of State Lands, by letter of September 26, 1991, denied petitioners' application for a consent for use of state lands, based on Rule 16D-2.011(3), Florida Administrative Code. However, by letter of November 13, 1991, the Division of State Lands advised petitioners that:

   
   

   The Division of State Lands has reconsidered its denial of consent for use of the state lands associated with Mr. Koblick's residential dock, as stated to Mr. Koblick in my letter of September 26, 1991, and has

   determined that there is no basis in its rules to deny his application for a single-

   family dock. Therefore I rescind that letter.

   
   

   However, Mr. Koblick's dock is located in John Pennekamp Coral Reef State Park and construction activities in the park are a violation of the Florida Administrative Code Rules of the Division of Recreation and Parks. The Board of Trustees of the Internal Improvement Trust Fund has dedicated the responsibility of the John Pennekamp State Park to the Division of Recreation and Parks of the Department of Natural Resources.

   
   

   Based upon our assessment, I strongly recommend that you contact Fran Mainella, Director, Division of Recreation and Parks, at the address above, to determine if Mr.

   Koblick's application is consistent with its policies and codes prior to beginning any construction activities.

   
   

8. In response to such correspondence, petitioners, by letter of December 17, 1991, requested authorization from the Division of Recreation and Parks to construct their dock within the park. By letter of December 27, 1991, the Division of Recreation and Parks, based on Rule 16D-2.011(3), Florida Administrative Code, denied petitioner's application.

   
   

9. Here, by complaint against respondents, DNR and the Board of Trustees, petitioners contest the propriety of the Division of State Land's failure to issue a consent of use permit pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, and the refusal of the Division of Recreation and Parks to approve their application for authorization to construct their dock within the boundaries of John Pennekamp Coral Reef State Park. Petitioners contend, as set forth in their proposed recommended order, that they should prevail in the instant proceeding based on the following "theories": 1/

   
   

   1. The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park.

      
      

   2. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park.

      
      

   3. Having obtained an exemption from the Department of Environmental Regulation

      ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla.

      Admin. Code.

      
      

   4. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp Park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable.

      
      

   5. The April 12, 1990, Board of Trustees "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A, or to repeal the consent of use granted on February 3, 1988, by Rule 18-

      21.005 Fla. Admin. Code.

      
      

   6. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988.

      
      

      The John Pennekamp Coral Reef State Park

      
      

10. On December 3, 1959, the Board of Trustees dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes.

    
    

11. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal governments regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes.

    
    

12. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified.

13. By Dedication 22309A, dated September 21, 1967, the Board of Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows:

    
    

    Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . .

    
    

    SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands.

    
    

14. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of the park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie.

    
    

15. Today, as a consequence of the aforesaid dedications and certain leases between the Board of Trustees and the Division of Recreation and Parks, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by DNR's Division of Recreation and Parks, the park currently draws approximately one million visitors a year.

    
    

    The rules at issue

    
    

16. Section 253.77, Florida Statutes, provides:

    
    

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

    
    

17. Consistent with such provision, the Board of Trustees have adopted Rule 18-21.005, Florida Administrative Code, which establishes the form of approval required for various activities. Pertinent to this case, subsection (1)(a) of the rule provides that where, as here, the proposed activity is exempt from DER permitting requirements under Section 403.813(2)(b), Florida Statutes [providing for exemption of private docks of 500 square feet or less of over- water surface area under certain circumstances], it "is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board "

18. Notwithstanding the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, which grants, "by rule," consent of use where the project is exempt from DER permitting requirements, the Division of Recreation and Parks' Rule 16D-2.011(3), Florida Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to other rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 2/

    
    

19. The purpose of the Division of Recreation and Parks' rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. 3/

    
    

    Construction activities in the park

    
    

20. Following receipt of petitioners' application in February 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative Code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of DNR, directed that DNR prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed DNR to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered.

    
    

21. Pertinent to this case, DNR's study identified 40 private docking facilities within the park boundaries. Of those structures, DNR's report revealed that seven were constructed prior to the park's expansion in 1967, 22 had no apparent authorization, six had received permits from either DER, Monroe County or the Corps but not DNR, and five had been "authorized" by DNR. The study further identified four commercial docking facilities within the park, only one of which was authorized, it having been registered as a grandfathered structure, and 12 unauthorized fills. 4/

    
    

22. Regarding the five private docks that had been "authorized," the proof demonstrates that the first dock was approved by the Board of Trustees on September 13, 1974, prior to the effective date of Rule 16D-2.001(3), Florida Administrative Code, and that the Division of Recreation and Parks, although asked to comment, voiced no objection to its construction. Such authorization was apparently granted under the "Trustees' Exemption Rule," the provisions of which do not appear of record. The remaining four docks were "approved" for a consent of use in 1980, 1982, 1986, and 1987, respectively, by field staff of DNR's Division of State Lands, under the exemption afforded by Rule 18- 21.005(1)(a), Florida Administrative Code, but no approval was ever requested of, or granted by, the Division of Recreation and Parks.

    
    

23. Regarding the "approval" garnered from the Division of State Lands for the four private docks, it is worthy of note, in so far as it may have borne on the Trustees' policy choice of April 12, 1990, discussed infra, that under the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, consent of use is automatic and no express or separate authorization is required. Notwithstanding, the Division of State Lands has, when requested to do so by applicants who apparently desire written confirmation of such exemption, provided such "approval."

24. Based on DNR's study and the public meetings, DNR recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows:

    
    

    1. Private Docks:

       
       

       . . . (1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that 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.

       
       

    2. Commercial docks:

       
       

       . . . (1) that docks currently authorized within state park waters by the Department of Natural Resources or Board of Trustees will retain authorized status until such time that current authorization expires; (2) that all other docks be considered as unauthorized structures and removed from state park waters within 90 days of receiving legal notification from the Department of Natural Resources; and (3) that no expansion of authorized commercial docks or construction of new commercial docking facilities be authorized.

       
       

    3. Fills:

    
    

    . . . (1) that unauthorized fills have been evaluated on a case-by-case basis using environmental impact to the marine environment as the primary evaluation criteria; (2) fills found to be detrimental

    to the marine environment may require partial or complete removal; and (3) no new fills be authorized.

    
    

25. Such policy was an apparent effort by the Board of Trustees to fairly resolve the status of structures existent before the park's boundaries were expanded in 1967, as well as subsequent encroachments, some of which, until 1988, were approved by the Division of State Lands under the provisions of Rule 18-21.005(1)(a) in apparent ignorance of, or refusal to accord deference to, the Division of Recreation and Parks Rule 16D-2.011(3). The Board of Trustees' policy has not been formally adopted as a rule, but does reflect an interpretation of Chapter 18-21, Florida Administrative Code, that would preclude the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks. See also Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), discussed infra, where the Board of Trustees denied a request for a consent of use under similar circumstances.

    
    

    Riparian rights and the "subject to" clause

    
    

26. Here, petitioners contend that the riparian rights provision contained in the "subject to" clause of Dedication 22309A should be construed to include the right of riparian upland owners, such as petitioners, to construct a dock on adjacent sovereign submerged lands. For the reasons that follow, petitioners' contention is rejected.

    
    

27. As heretofore noted, Dedication 22309A, dated September 21, 1967, expanded the boundaries of John Pennekamp Coral Reef State Park by dedicating certain sovereignty lands in Monroe County, Florida, as follows:

    
    

    Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo;

    
    

    as and for public State Park purposes only . . .

    
    

    SUBJECT, HOWEVER, to any riparian rights and interests which may exist in or affect the above described lands.

    
    

28. The "subject to" clause was inserted into the aforesaid dedication by the Board of Trustees based on its staff's recommendation that the dedication be authorized:

    
    

    . . . but . . . contain the provision that the statutory riparian rights and the right to purchase the riparian bottom lands by an affected upland owner not be impaired in any manner. (Emphasis added).

    
    

29. Considering the staff recommendation, which was the apparent impetus for the "subject to" clause, and the language of the "subject to" clause, it is concluded that the "subject to" clause is clear and unambiguous and evidences no

    intention to accord upland owners any riparian right beyond that existent under law. Such rights were defined at the time, as they are now under Section 253.141(1), Florida Statutes, as follows:

    
    

    Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law . . . .

    
    

    As will be addressed in the conclusions of law, riparian rights did not at the time, and do not now, include the unqualified right to construct a dock on sovereign submerged lands, and petitioners' contention that the "subject to" clause should be so interpreted is rejected as contrary to the clear and unambiguous language of such clause.

    
    

30. In reaching the foregoing conclusion, the proof offered by petitioners regarding the Board of Trustees' sale of state owned submerged lands in the park to private persons subsequent to 1967, the Board of Trustees' authorization for the construction of an access or navigational channel in the park by a private person subsequent to 1967, and the authorizations granted for private docks within the park, as heretofore discussed, has not been overlooked. However, for the reasons that follow, such proof failed to persuasively demonstrate, as contended by petitioners, that the "subject to" clause was intended to afford upland owners an unqualified right to construct a private dock on sovereign submerged lands or to restrict the Division of Recreation and Parks, or its predecessor, from restricting such construction activities in the park.

    
    

31. Foremost among the reasons petitioners' proof was unpersuasive is the conclusion reached that the "subject to" clause is clear and unambiguous. Under such circumstances, resort to extrinsic evidence to interpret the clause is unnecessary, and the proof offered by petitioners is irrelevant. Moreover, as to the proof itself, it is woefully lacking in sufficient specificity to persuasively demonstrate that the clause should be interpreted differently.

    
    

32. With respect to the proof dealing with the Board of Trustees' sale of some state-owned submerged lands within the park to private persons subsequent to 1967, there was no proof regarding the date of any such sales, to whom it was sold, or the circumstances surrounding the sale, but simply generalized proof that such sales had occurred. The same lack of specificity exists with regard to the proof offered with regard to the Board of Trustees' authorization for the construction of a navigation channel within the park subsequent to 1967. Under such circumstances, the proof offered fails to demonstrate any persuasive nexus between the Board of Trustees' action and the "subject to" clause. Rather, the Board of Trustees' action may as easily be ascribed to other legal authority upon which the board was empowered to alienate state lands, as the "subject to clause," and any conclusion to the contrary would be base speculation. See e.g., Sections 253.12 et. seq., Florida Statutes (1967).

    
    

33. Finally, the proof offered regarding the authorizations granted for the construction of private docks within park boundaries, discussed supra, and the opinions expressed within DNR during such period that common and statutory law regarding riparian rights contemplated the construction of such docks pursuant to the riparian owner's right of ingress and egress, does not compel a different conclusion. Rather, such proof evidences a misapprehension of the law, as opposed to a reflection of any significance to be accorded the language used in the "subject to" clause beyond its patent import.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

35. Petitioners, as the applicants, bear the ultimate burden of persuasion to demonstrate their entitlement to the authorizations requested for their proposed development. Young v. Department of Community Affairs, 567 So.2d 2 (Fla. 1st DCA 1990), and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, for the reasons that follow, petitioners have failed to sustain their burden of proof.

    
    

36. Petitioners' initial "theories," on which they contend they should prevail in the instant proceeding, are as follows:

    
    

    1. The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park.

       
       

    2. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park.

       
       

37. As heretofore noted in the findings of fact, the "subject to" clause in Dedication 22309A is clear and unambiguous, and it is unnecessary to resort to extrinsic evidence to establish its import. It evidences no intention to accord upland owners any riparian rights beyond those which "may be or have been defined by law." Section 271.09(1), Florida Statutes (1967), currently codified at Section 253.141, Florida Statutes (1992). Moreover, as heretofore found in the findings of fact, the proof offered by petitioners on this issue failed to persuasively demonstrate that the "subject to" clause should be interpreted differently or that it was "intended to afford land owners protection from rules of the Board of Parks and Historic Memorials Rules which prohibited dredging, filling or other construction activities in Pennekamp Park," or that such provision was "intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park." In sum, the "subject to" clause granted upland owners only that which they were otherwise entitled to by law. See Section 271.09(1), Florida Statutes (1967), currently codified at Section 253.141, Florida Statutes (1992).

    
    

38. Historically, riparian owners have enjoyed a qualified right to wharf out on sovereign lands in the absence of prohibition by the state. In Ferry Pass Inspectors' & Shippers' Ass'n. v. White's River Inspectors' and Shippers' Ass'n., 48 So. 643, 644 (Fla. 1909), the court noted:

    The state by virtue of its sovereignty holds in trust for all the inhabitants of the state the title to the lands under the navigable waters within the state including the shore or space between high and low water

    marks. . . .

    
    

    Riparian rights are incident to the ownership of lands contiguous to and bordering on navigable waters. The common-law rights of riparian owners with reference to the navigable waters are incident to the ownership of the uplands that extend to high- water mark. The shore or space between high and low water mark is a part of the bed of navigable waters, the title to which is in the state in trust for the public. . . .

    
    

    Among the common-law rights of those who own land bordering on navigable waters apart from rights of alluvion and dereliction are the right of access to the water from the land for navigation and other purposes expressed or implied by law, . . . the right to use the water in common with the public for navigation, fishing, and other purposes in which the public has an interest. Subject to the superior rights of the public as to navigation and commerce, and to the concurrent rights of the public as to fishing and bathing and the like, a riparian owner may erect upon the bed and shores adjacent to his riparian holdings bath houses, wharves, or other structures to facilitate his business or pleasure; but these privileges are subject to the rights of the public to be enforced by proper public authority or by individuals who are specially and unlawfully injured. Riparian owners have no exclusive right to navigation in or commerce upon a navigable stream opposite the riparian holdings, and have no right to so use the water or land under it as to obstruct or unreasonably impede lawful navigation and commerce by others, or so as to unlawfully burden or monopolize navigation or commerce. The exclusive rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon; and these rights may not be so exercised as to injure others in their lawful rights. . . .

    
    

    The rights of the public in navigable streams for purposes of navigation are to use the waters and the shores to high-water mark in a proper manner for transporting persons and

    property thereon subject to controlling provisions and principles of law. The right of navigation should be so used and enjoyed as not to infringe upon the lawful rights of others. All inhabitants of the state have concurrent rights to navigate and to transport property in the public waters of the state. As to mere navigation in and commerce upon the public waters, riparian owners as such have no rights superior to other inhabitants of the state. A riparian owner may use the navigable waters and the lands thereunder opposite his land for purposes of navigation and of conducting commerce or business thereon, but such right is only concurrent with that of other inhabitants of the state, and must be exercised subject to the rights of others

    . . . . The right of access to the waters from the riparian lands may in general be exclusive in the owner of such lands, but as to the use of the navigable waters and the lands thereunder, including the shore, the rights of riparian owners and of others of the public are concurrent, and subject to applicable rules of law. . . . In the absence of a valid grant from the sate, no riparian owner or other person has an exclusive right to do business upon public waters of the state whether such waters are in front of the land of the riparian owner or not. (Citations omitted; emphasis supplied).

    
    

    Moreover, Section 271.09(1), Florida Statutes (1967), currently Section 253.141, Florida Statutes, has recognized such riparian rights as existed at common law.

    
    

39. More recently, the Third District Court of Appeal addressed the qualified nature of a riparian owner's right to wharf out in a case strikingly similar to the instant case. That case, Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), arose upon the Board of Trustee's denial of consent to build a dock within John Pennekamp Coral Reef State Park. Such denial was predicated on the rule at issue in these proceedings, as well as the Board's policy of April 12, 1990. Therein, petitioner alleged that such denial was an unconstitutional taking of her property rights. The Circuit Court dismissed the case for failure to state a cause of action and the appellate court affirmed, stating:

    
    

    The appellant's upland property carries with it certain riparian rights. Game and Fresh Water Fish Commission v. Lake Islands, Ltd.,

    407 So.2d 189, 191 (Fla. 1981). Although the riparian right of ingress and egress is an appurtenance to the ownership of private upland property, Hayes, 91 So.2d at 799, it is a qualified right which must give way to the rights of the state's people. Game and Fresh Water Fish Commission, 407 So.2d at 191

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

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

    
    

    Among other principles the Public Trust Doctrine dictates that there be some impairment of a citizen's right to enjoy absolute freedom before allowing a citizen the use of public submerged land. Game and Fresh Water Fish Commission, 407 So.2d 1989; Sarasota County Anglers Club, Inc. v. Burns,

    193 So.2d 691 (Fla. 1st DCA 1967). The appellant made no showing in the record of necessity or that ingress or egress to her property by means of water is the only method thereof. As she alleged in her complaint, her property is bounded on one side by a public road on which she can travel to and from her property. Ingress and egress by water, therefore, is not a necessity for which the appellant may claim a right superior to that of the public.

    
    

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

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

40. From the foregoing, it may be concluded that petitioners' riparian right to wharf out is not unqualified and that where, as here, there is no showing that petitioners require the ability to wharf out for purposes of ingress and egress, application of Rule 16D-2.011(3), Florida Administrative Code, to prohibit such activity does not conflict with any riparian right reserved to petitioners.

    
    

41. The petitioners' remaining "theories," to the extent they have not been resolved by the foregoing discussion, are as follows: 5/

    
    

    1. Having obtained an exemption from the Department of Environmental Regulation ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla. Admin. Code.

       
       

    2. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable.

       
       

    3. The April 12, 1990, Board of Trustees' "Policy" was ineffective . . . to repeal the consent of use granted on February 3, 1988, by Rule 18-21.005, Fla. Admin. Code.

       
       

    4. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988.

    
    

42. Pertinent to the resolution of these issues are the provisions of Chapter 18-21, Florida Administrative Code, which deals with the management of sovereignty submerged lands, and Chapter 16D-2, Florida Administrative Code, which deals with the management of state parks. Of import here, Chapter 18-21 provides:

    
    

    18-21.002 Scope and Effective Date.

    (1) These rules are to implement the administrative and management responsibilities of the board and department regarding sovereign submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereign and other lands is vested with the Department of Environmental Regulation.

    These rules are considered cumulative. Therefore, a person planning an activity

    should consult other applicable department rules as well as the rules of the Department of Environmental Regulation. (Emphases added).

    * * *

    18-21.005 Procedures--Forms of Consent.

    1. All activities on sovereignty lands shall require a lease, easement, consent of use, use agreement or other form of approval. The following shall be used to determine the form of approval required.

       
       

       1. Consent of Use--is required for the following activities, provided that any such activity not located in an Aquatic Preserve or Manatee Sanctuary and which is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a), (b), (c), (d), (e), (g), (h), (i), and (k), Florida Statutes, is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board:

    
    

    1. A single dock or access channel which is not more than the minimum length and size necessary to provide reasonable access to navigable water;

       
       

    2. Docks, access channels, boat ramps, or other activities which preempt no more than 1,000 square feet of sovereignty land area for each 1000 linear feet of shoreline in the applicant's ownership (see "preempted area" definition Rule 18-21.003(36), Florida Administrative Code). Proportional increases in the 1,000 square foot threshold can be added for fractional shoreline increments over 100 linear feet;

    
    

    And, Chapter 16D-2 provides:

    
    

    16D-2.011 John Pennekamp Coral Reef State Park

    
    

    (1) General. The John Pennekamp Coral Reef State Park is established for the protection of the coral reef formation and its associated marine life. These specialized rules are intended to provide maximum public use of the area consistent with the preservation of its scenic and scientific values.

    * * *

    (3) Construction Activities. Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or

    filling operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service facility shall be constructed or extended into, upon or across this state park.

    
    

43. Here, petitioners' contention that the provisions of Chapter 18-21, Florida Administrative Code, should apply to the exclusion of Chapter 16D-2, Florida Administrative Code, is without merit. Rule 18-21.002 clearly states:

    
    

    . . . These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department rules. . . .

    
    

    Accordingly, while petitioners' application would normally satisfy the requirements for a consent of use under Rule 18-21.005, it is also subject to the provisions of Rule 16D-2.011 where, as here, the proposed activity is located within the boundaries of John Pennekamp Coral Reef State Park. So located, the Board of Trustees has interpreted the aforesaid rules as prohibiting the proposed activity.

    
    

44. Generally, an administrative construction of a statute by an agency responsible for its administration is entitled to great deference and should not be overturned unless clearly erroneous. Department of Environmental Regulation

    v. Goldring, 477 So.2d 532 (Fla. 1985), All Seasons Resorts, Inc. v. Division of Land Sales, Condominiums and Mobile Homes, 455 So.2d 544 (Fla. 1st DCA 1984), and Sans Souci v. Division of Land Sales and Condominiums, 421 So.2d 623 (Fla. 1st DCA 1982). The same deference has been accorded to rules which have been in effect over an extended period and to the meaning assigned to them by officials charged with their administration. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983), and State Department of Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978). Moreover, the agency's interpretation does not have to be the only one or the most desireable one; it is enough if it is permissible. Pan American World Airways, Inc. v. Florida Public Service Commission, supra, and Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 684 (Fla. 1st DCA 1983). Here, considering the provisions of Rule 18-21.002(1), the Board of Trustees' interpretation of the subject rules as precluding the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks is permissible, and not clearly erroneous. Indeed, under the circumstances, it would be incongruous for DNR's Division of State Lands to grant a consent of use for an activity within sovereign submerged lands leased to and managed by DNR's Division of Recreation and Parks that was contrary to its rules. Gadsden State Bank v. Lewis, 348 So.2d 343, 345 (Fla. 1st DCA 1977), ("Agencies must honor their own substantive rules until, pursuant to 120.54, Fla. Stat. . . ., they are amended or abrogated"). Accordingly, the Division of State Lands refusal to issue or approve a consent of use in the instant case was appropriate, as was the Division of Recreation and Parks refusal to authorize the construction of the subject dock within the boundaries of John Pennekamp Coral Reef State Park.

    
    

45. Likewise, petitioners' contention that the Board of Trustees' policy of April 12, 1990, was ineffective to repeal the consent of use granted by Rule 18-21.005 and that such policy only prohibited "future authorizations," is

    likewise without merit. As heretofore noted, petitioners never qualified for a consent of use under Rule 18-21.005 because their project violated the provisions of Rule 16D-2.011. Moreover, policy does not supplant duly enacted rules. Rather, existent rules must be duly applied until amended or repealed. Gadsden State Bank v. Lewis, supra.

    
    

46. In like manner, petitioners' contention that, in light of the activities permitted within the park boundaries since 1967, discussed supra, respondent's decision to apply Rule 16D-2.011(3) to petitioners' dock is arbitrary and unreasonable, is also without merit. To the contrary, it would be respondents' failure to duly apply their rules that would be arbitrary or unreasonable, not their decision to apply them as written. Gadsden State Bank

    v. Lewis, supra. Under such circumstances, respondents' action may not be characterized as arbitrary or unreasonable. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979), ("A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic.")

    
    

47. Finally, petitioners have requested an award of attorney's fees and costs under the provisions of Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act." Petitioners' request is premature as they are not prevailing small business parties as that term is defined by Section 57.111(3)(c), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents render a final order which denies petitioners'

request for consent of use, as well as their request for authorization to construct a private dock within the boundaries of John Pennekamp Coral Reef State Park.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February 1993.

WILLIAM J. KENDRICK

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 2nd day of February 1993.

ENDNOTES

1/ The petitions at issue in this case raised a few other issues but petitioners elected not to address them in their proposed recommended order. Under the circumstances, it is reasonable to conclude that such issues have been abandoned. Notwithstanding, they have been considered and found lacking in merit.

2/ According to DNR's answers to interrogatories, The Board of Parks and Historic Memorials had, since 1962, "rules that prohibited all filling, excavation and construction within the boundaries of John Pennekamp Coral Reef State Park." Such rules are not, however, of record, and the express provisions of those rules are not known.

3/ The validity of Rule 16D-2.011(3), Florida Administrative Code, was challenged by petitioners in DOAH Case No. 92-1041RX. By final order, dated October 14, 1992, petitioners' challenge to the rule was found to lack merit, and their petition to declare such rule invalid was dismissed. [Respondents' Exhibit 1].

4/ A subsequent study conducted by DNR on December 12, 1989, did not materially differ from this study, but did observe that in the interim three additional docks had been constructed within the park boundaries, without authorization, since the last study.

5/ Petitioners' fifth theory also included the contention that "The April 12, 1990, Board of Trustees' "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A." Such theory was implicitly resolved adversely to petitioners in the preceding paragraphs of the conclusions of law.

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2-4. Addressed in paragraphs 4 and6.

5-9. Addressed in paragraphs 6 and 7.

10 & 11. Addressed in paragraph 8.

12-16. Addressed in paragraphs 10-15.

17 & 18. Unnecessary detail.

19-22. Addressed in paragraphs 21, 25, 30, 32 & 33.

1. Addressed in paragraph 20, otherwise unnecessary detail.

2. Rejected as not supported by the record referenced, but addressed in paragraph 25.

25 & 26. Unnecessary detail.

1. Rejected as contrary to the proof. See paragraph 25.

2. Rejected as a mischaracterization of the proof. See paragraphs 22 and 25.

29 & 30. Addressed in paragraph 33.

1. Addressed in paragraph 18, and endnote 2.

2. Addressed in paragraph 19, otherwise rejected as not relevant. See Respondents' Exhibit 1.

3. Addressed in paragraph 18.

4. Addressed in paragraph 17.

35 & 36. Addressed in paragraph 23.

37. Rejected as contrary to the proof.

38 & 39. Addressed in paragraphs 30-33.

1. Addressed in paragraph 33.

2. Accepted as supported by the proof, but unnecessary. The Division of Recreation and Parks' rule prohibited such construction. See paragraph 25.

3. Addressed in paragraph 3, otherwise unnecessary detail.

43 & 44. Addressed in paragraphs 28-33, otherwise not relevant or unnecessary detail.

45. Addressed in paragraph 25.

46 & 47. To the extent pertinent, addressed in paragraphs 13, 28 and 29.

48 & 49. Addressed in paragraphs 28 and 29.

Respondents' proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Addressed in paragraphs 2 and 3.

3 & 4. Addressed in paragraphs 4-6.

1. Addressed in paragraphs 20, 24 and 25.

2. Addressed in paragraph 7.

3. Addressed in paragraphs 8 and 18.

4. Addressed in endnote 3.

5. Addressed in paragraph 9.

10 & 11. Addressed in paragraphs 27 and 28.

1. Addressed in paragraphs 10, 13, and 15.

2. Addressed in paragraph 18.

3. Addressed in paragraphs 21, 22, 24 and 25

4. Addressed in paragraph 22.

5. Addressed in paragraphs 22 and 25.

6. Addressed in paragraph 25.

7. Not relevant.

8. Addressed in preliminary statement.

COPIES FURNISHED:

Andrew M. Tobin, Esquire Mattson & Tobin

Post Office Box 586

Key Largo, Florida 33037

Suzanne B. Brantley

John W. Costigan, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

MS-35 Douglas Building Tallahassee, Florida 32399-3000

Virginia B. Wetherell Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

MS-10 Douglas Building Tallahassee, Florida 32399-3000

Kenneth Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

MS-10 Douglas Building Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

================================================================= DISTRICT COURT OPINION

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

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

IAN KOBLICK and TONYA KOBLICK, NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 93-2687

DOAH CASE NO. 92-551

FLORIDA DEPARTMENT OF ENVIROMENTAL PROTECTION, F/K/A FLORIDA DEPARTMENT OF NATURAL RESOURCES, AND BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,

Appellee.

/ Opinion filed March 1, 1995

An appeal from the Order of the Department of Enviromental Protection.

Andrew M. Tobin and James S. Mattson & Tobin, Key Largo, for appellants.

Kenneth J. Plante, General Counsel; Suzanne B. Brantley, Assistant General Counsel, Department of Environmental Protection, for appellees.

KAHN, J.

This appeal involves a dispute over the construction of a private dock on state-owned submerged lands within John Pennekamp Coral Reef State Park. We find that despite the Board of Trustees adoption of a policy strictly enforcing the "no construction" rule in Pennekamp Park on April 12, 1990, the appellants had a consent of use by rule as of February 3, 1988, when the Department of Environmental Regulation determined the proposed dock was exempt from permitting requirements. The record before us clearly indicates that had Mr. Koblick simply built his dock at that time, rather than attempting in good faith to work through agency bureaucracy, he would have had a properly permitted dock under the policy adopted April 12, 1990. Accordingly, the appellants should not have been denied permission to construct their dock, and we therefore reverse the final order denying such permission.

REVERSED.

ZEHMER, C.J., and VAN NORTWICK, J., CONCUR.

Docket for Case No: 92-000551

Orders for Case No: 92-000551