STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN KOBLICK and TONYA KOBLICK, )

)

Petitioners, )

)

vs. ) CASE NO. 92-1041RX

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL 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 case on July 30, 1992, in Tallahassee, 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 Assistant General Counsel Department of Natural Resources Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent's Rule 16D-2.011(3), constitutes an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This is a rule challenge brought under the provisions of Section 120.56, Florida Statutes, to challenge the propriety of respondent's Rule 16D-2.011(3), Florida Administrative Code, which prohibits all construction activities of any kind within the confines of John Pennekamp Coral Reef State Park, except those initiated by the respondent's Division of Recreation and Parks.

At hearing, petitioners called Francis Mainella, Director of the Division of Recreation and Parks, and Michael Ashey, Chief of the respondent's Bureau of Submerged Lands and Preserves, as witnesses, and their exhibits 1, 2, 3A, 3B, and 5-13 were received into evidence. Respondent called Francis Mainella and Rod Maddox, an expert in land surveying, as witnesses, and its exhibits 1-5 were received into evidence.

The transcript of hearing was filed August 28, 1992, and the parties were granted leave until September 7, 1992, to file proposed findings of fact. Such deadline was, however, extended to September 15, 1992, as a consequence of difficulties experienced by counsel due to impacts associated with Hurricane Andrew. The parties' proposals have been addressed in the appendix to this final order.

FINDINGS OF FACT

Background

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 all the people of the state.

   
   

2. On December 5, 1991, petitioners sought permission from respondent's Division of Recreation and Parks to construct a private single family dock on the sovereign submerged lands contiguous to their property. According to the proof, such dock would measure approximately 70' in length and 4' in width, and include one boat slip measuring 30' in length and 9' in width. Apart from such limited proof, there is no evidence of record as to the use to which such dock would be put, although it is clear that its construction has no relationship to petitioners' ability to access their property since they have access to such property by road.

   
   

3. By letter of December 27, 1991, respondent denied petitioners' request based on Rule 16D-2.011(3), Florida Administrative Code, which provides, pertinent to protections to be accorded John Pennekamp Coral Reef State Park, as follows:

   
   

   (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.

   
   

4. By petition filed with the Division of Administrative Hearings, petitioners challenged the validity of such rule as an invalid exercise of delegated legislative authority. The gravamen of petitioners' challenge, as set forth in their proposed final order, is that "a) Rule 16D-2.011 is invalid because it contravenes Section 253.141, Fla. Stat., which recognizes riparian rights; b) the Rule is invalid because it is inconsistent with the "subject to" clause in Dedication 22309A; and c) the Rule is arbitrary and capricious because it assumes that all construction activity adversely affects the Park."

   The John Pennekamp Coral Reef State Park

   
   

5. On December 3, 1959, the Trustees of the Internal Improvement Trust Fund of the State of Florida (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 Memorials, the predecessor to respondent'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.

   
   

6. 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 government 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.

   
   

7. 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.

   
   

8. By Dedication 22309A, dated September 21, 1967, the Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to respondent'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.

   
   

9. 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 such state 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.

   
   

10. Today, as a consequence of the aforesaid dedications and certain leases between the Trustees and respondent, John Pennekamp Coral Reef State Park

    consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by respondent's Division of Recreation and Parks, the park currently draws approximately one million visitors a year.

    
    

    The rule at issue

    
    

11. The rule at issue in these proceedings, Rule 16D

    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 rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 1/

    
    

12. The purpose of the 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.

    
    

13. At hearing, petitioners failed to offer any persuasive proof that the cumulative impact of construction in the park would not have an adverse effect on the park's natural resources, or that the ban of all construction activities in the park not specifically initiated by the Division of Recreation and Parks was not supported by reason, fact or logic.

    
    

    Docks in the park

    
    

14. In or about May 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 the Department of Natural Resources (Department), directed the Department to 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 the Department to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered.

    
    

15. Pertinent to this case, the Department's study identified 40 private docking facilities within the park boundaries. Of those structures, the Department's report revealed that 7 were constructed prior to the park's creation in 1967, 22 had no apparent authorization, 6 had received permits from either the Department of Environmental Regulation, Monroe County, or the Army Corps of Engineers, and 5 had been authorized by the Department notwithstanding the provisions of Rule 16D-2.011(3).

    
    

16. Regarding the Department's approval of such docks, the proof demonstrates that, more likely than not, such approval was secured from the Department's Division of State Lands pursuant to the provisions of Chapter 18- 21, Florida Administrative Code, and in apparent ignorance of the Division of Recreation and Parks' Rule 16D-2.011(3), which prohibited such activity. Certainly, the Division of Recreation and Parks was not aware that such approvals had been given until the Department's study, and it never authorized such construction within the park's boundaries.

    
    

17. Based on the Department's study and the public meetings, the Division of Recreation and Parks and the Division of State Lands 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) 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 authorization will be issued for the construction of new private docks in state park waters.

    
    

    Repairs to existing private docks

    
    

18. While the rule provisions prohibiting construction activities in the park are clear and unambiguous, petitioners sought to raise some uncertainty regarding the rule by reference to the circumstances under which the docks that had been grandfathered under the Board's policy statement of April 12, 1990, could be repaired. In this regard, petitioners elicited proof from the Division of Recreation and Parks that authorization for repair of such structures would have to be reviewed on a case-by-case basis, giving due consideration to the extent or nature of the maintenance or repair, before a decision could be made.

    
    

19. While the question of repairs to existing structures may raise some question of uncertainty to the owners of those docks, such uncertainty is not occasioned by the rule. Rather, such uncertainty is a product of the existence of docks in the park, albeit without the approval of the Division of Recreation and Parks, and the policy choice made on April 12, 1990, by the Board as to how to address those structures. Under such circumstances, it cannot be concluded that the rule, as or when enacted, is vague or otherwise objectionable.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sec. 120.56, Florida Statutes.

    
    

21. To prevail in this case, the burden is upon the petitioners to demonstrate that the subject rule is an invalid exercise of delegated legislative authority. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), and Agrico Chemical Co. v.

    Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978). An invalid exercise of delegated legislative authority is defined by Section 120.52(8), Florida Statutes, which, pertinent to this case, provides:

    
    

    "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

    * * *

    (b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

    * * *

    1. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    2. the rule is arbitrary or capricious.

    
    

22. First, petitioners contend that the subject rule is invalid because the agency exceeded its grant of rulemaking authority. Pertinent to this case, the agency's rulemaking authority is derived from Section 258.011, Florida Statutes, which provides:

    
    

    The Division of Recreation and Parks may adopt and enforce such rules and regulations as may be necessary for the protection, utilization, development, occupancy, and use of said parks, and consistent with existing laws and with the purpose, or purposes, for which said areas were acquired, designated, and dedicated, and

    when such rules and regulations shall have been adopted they shall have the force and effect of law. (Emphasis added)

    
    

23. Here, petitioners charge that the rule, which forecloses a riparian land owner from building a dock ("wharfing out") on adjacent sovereign submerged park lands, exceeds the agency's grant of rulemaking authority because it contravenes existing law with regard to riparian rights and, further, contravenes the purpose for which the park was dedicated because such dedication was expressly "SUBJECT . . . to any riparian rights" existent to the submerged lands that were dedicated. Resolution of petitioners' contention resolves itself to a determination of whether the subject rule contravenes riparian rights existent at common law.

    
    

24. 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 commence 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 state, 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 253.141, Florida Statutes, has recognized such riparian rights as existed at common law.

    
    

25. 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 189; Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (Fla. 1st DCA 1967). The appellant made no showing in the record of necessity or that ingress or egress to her property by means of water is the only method thereof. As she alleged in her complaint, her property is bounded on one side by a public road on which she can travel to and from her property.

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

    As a riparian owner, the appellant has no title, of any nature, to the sovereign lands that are held in trust by the Trustees for the people of Florida. Graham v. Edwards,

    472 So.2d 803, 806, (3d DCA 1985), rev. denied

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

    
    

26. 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, a rule prohibiting such activity is not arbitrary or unreasonable. Game and Fresh Water Fish Commission v. Lake Island, Ltd., 407 So.2d 189 (Fla. 1981). Moreover, under such circumstances, the prohibition here existent does not constitute an unlawful taking of private property without compensation. Kreiter v. Chiles, supra. Accordingly, it cannot be concluded that the subject rule, which prevents petitioners from wharfing out, exceeds the agency's grant of rulemaking authority.

27. Petitioners also urge, with regard to their claim that the rule exceeds the agency's grant of rulemaking authority, that the Department of Recreation and Parks is without jurisdiction to impose rules within the park. Such assertion is premised on petitioners' assertion that Section 253.03, Florida Statutes, vests the administration, management, control, supervision, conservation, protection and disposition of state lands in the Board of Trustees, and that Chapter 18-21, Florida Administrative Code, establishes the criteria for regulating activities on sovereign lands. Such contention is not, however, persuasive, when, as here, the Board of Trustees, through dedication and lease, has delegated to the Division of Recreation and Parks, or its predecessor in interest, the lands for public park purposes. Under such disposition of state lands, the Division of Recreation and Parks is authorized by Section 258.011, Florida Statutes, to adopt and enforce such rules as may be necessary for the protection of the park.

    
    

28. Next, petitioners contend that the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.

    
    

29. A rule is vague or fails to establish adequate standards for agency decisions when its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Cumming, 365 So.2d 153 (Fla. 1978). A rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow v. Holland, 125 So.2d 749 (Fla. 1960).

    
    

30. Applying the foregoing standards to the facts of this case fails to demonstrate that the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency. In fact, the only proof offered by petitioners on this issue dealt with a question regarding repairs to existing structures that had been grandfathered under the Board's policy of April 12, 1990. However, as noted in the findings of fact, such policy, or the uncertainty regarding repairs to the structures grandfathered under such policy, does not render the rule, as or when enacted, vague or otherwise objectionable. Rather, it is the validity of such policy, or the authorization or refusal to authorize repairs to structures grandfathered under such policy, that is subject to scrutiny when, and if, properly challenged. 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").

    
    

31. Finally, petitioners contend that the rule is arbitrary and capricious. An arbitrary and capricious action is defined in Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979), as follows:

    
    

    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.

    
    

32. Here, petitioners failed to demonstrate by a preponderance of the evidence that the rule is not supported by fact or logic, or that its enactment was precipitated without reason. Succinctly, petitioners failed to offer any proof that the predicate for the rule, that the cumulative impact of

construction in the park would adversely affect the park's natural resources, was not supported by fact, reason or logic. 2/

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is ORDERED that the petition to declare the provisions of Rule 16D-2.011(3),

Florida Administrative Code, invalid is dismissed.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of October 1992.

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 14th day of October 1992.

ENDNOTES

1/ In fact, the Division or its predecessor in interest had an established policy which prohibited construction in the park even before the rule was adopted.

2/ The petition at issue in this case raised a few other issues but petitioners elected not to address them in their proposed final 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 for the reasons advanced in respondent's memorandum of law, as well as the conclusions of law set forth in respondent's proposed final order.

APPENDIX TO RECOMMENDED ORDER

Petitioner's proposed findings of fact are addressed as follows: 1-9. Not relevant or necessary to the issues raised.

1. Addressed in paragraphs 2 and 3.

2. Addressed in paragraph 11 and endnote 1.

3. Addressed in paragraphs 5-7.

13-15. Addressed in paragraph 8.

16-18. Addressed in paragraphs 5, 7 and 9.

19, 20 & 22. Addressed in paragraphs 14 and 15, otherwise rejected as unnecessary detail.

21. Rejected as contrary to the proof. See paragraphs

14 and 16.

1. Addressed in paragraphs 3 and 12.

2. Rejected as not a finding of fact, but recitation of testimony.

25 & 26. Addressed in paragraph 13.

27 & 28. Addressed in paragraph 11, otherwise rejected as unnecessary detail.

29 & 30. Addressed in paragraph 10 and endnote 1.

1. Addressed in paragraph 12.

2. Addressed in paragraphs 18 and 19.

33-35. Addressed in paragraph 13, Findings of Fact, and paragraph 27, Conclusions of Law, otherwise rejected as recitation of testimony, a conclusion of law, or unnecessary detail.

Respondent's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraph 1.

1. Addressed in paragraph 8.

2. Addressed in paragraph 10.

3. Addressed in paragraph 11.

4. Addressed in paragraph 3.

5. Addressed in paragraphs 2 and 3.

8 & 9. Addressed in paragraphs 5-8.

1. Addressed in paragraph 9.

2. Addressed in paragraphs 1 and 8.

3. Addressed in paragraph 10 and endnote 1

4. Addressed in paragraph 12.

5. Addressed in paragraph 16.

6. Addressed in paragraphs 12 and 17.

7. Accurate, but not necessary to the issues raised.

8. Addressed in paragraph 2.

COPIES FURNISHED:

Andrew M. Tobin, Esquire James S. Mattson, Esquire Post Office Box 586

Key Largo, Florida 33037

Suzanne B. Brantley

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

MS-35 Douglas Building Tallahassee, Florida 32399-3000

Virginia B. Wetherell Executive Director

Department of Natural Resources Mail Station 10

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenenth Plante General Counsel

Department of Natural Resources Mail Station 10

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68. FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

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

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

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

IAN KOBLICK and NOT FINAL UNTIL TIME EXPIRES TO

TONYA KOBLICK, FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

Appellants,

CASE NO. 92-3870

vs. DOAH CASE NO. 92-1041RX

FLORIDA DEPARTMENT OF NATURAL RESOURCES,

Appellee.

/ Opinion filed February 21, 1994.

An Appeal from the Division of Administrative Hearings. William J. Kendrick, Judge.

Andrew M. Tobin, James S. Mattson of Mattson & Tobin, Key Largo, for Appellants.

Kenneth J. Plante, General Counsel, Suzanne B. Brantley, Assistant General Counsel, Department of Natural Resources, Tallahassee, for Appellee.

PER CURIAM.

AFFIRMED.

ERVIN, BARFIELD and BENTON, JJ., CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable, William J. Kendrick, Hearing Officer

Division of Administrative Hearings WHEREAS, in that certain cause filed in this Court styled:

IAN KOBLICK and TONYA KOBLICK

vs. Case No. 92-3870

Your Case No. 92-1041RX

DEPARTMENT OF NATURAL RESOURCES

The attached opinion was rendered on February 21, 1994.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable E. Earle Zehmer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 9th day of March, 1994.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 92-001041RX

Orders for Case No: 92-001041RX