STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES F. ROSSIGNOL, )

)

Petitioner, )

and )

) SAFETY HARBOR PROPERTY OWNER'S ) ASSOCIATION and TOLLGATE SHORES ) HOMEOWNER'S ASSOCIATION, )

)

Intervenors, )

)

vs. ) CASE NO. 95-5634

)

BOY SCOUTS OF AMERICA and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on June 25, 1996, in Tavernier, Florida.

APPEARANCES

For Petitioner: Charles Rossignol, pro se

253 Tollgate Boulevard Islamorada, Florida 33036

For Intervenor: Richard D. Spohn, pro se Safety Harbor 112 Willow Lane

Property Owners' Islamorada, Florida 33036 Association

For Intervenor: Donald Houder, pro se Tollgate Shores 217 Tollgate Boulevard Homeowner' Islamorada, Florida 33036 Association

For Respondent: Melease Jackson Department of Lynette Ciardulli

Environmental Assistant General Counsels

Protection Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Nick Mulick, Esquire Boy Scouts of Bechmeyer & Mulick

America Islamorada Professional Center 81990 Overseas Highway, Suite 201

Islamorada, Florida 33036 STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent, the Boy Scouts of America, is exempt pursuant to Section 403.813(2)(c) and (i), Florida Statutes, from obtaining a wetland resource permit for the construction of a dock and boat ramp.

PRELIMINARY STATEMENT

In April of 1995 the Boy Scouts of America filed an application with the Department of Environmental Protection requesting verification that it was not required to obtain a wetland resource permit for a proposed project to construct a dock and boat ramp.

In a letter dated May 11, 1995, the Department of Environmental Protection informed the Boy Scouts of America that their proposed project was exempt from obtaining a wetland resource permit pursuant to Section 403.813, Florida Statutes. Petitioner, Charles Rossignol, filed a letter challenging this proposed decision of the Department of Environmental Protection.

On November 20, 1995, the Department of Environmental Protection filed the request for hearing with the Division of Administrative Hearings. The matter was designated case number 95-5634 and was assigned to Hearing Officer Linda Rigot. On June 19, 1996, the case was transferred to the undersigned.

Safety Harbor Property Owners' Association and Tollgate Shores Homeowners' Association were granted leave to intervene.

Mr. Rossignol requested, and was granted, permission to enter onto land of the Boy Scouts of America to take measurements and/or have a survey performed. Mr. Rossignol took measurements on the property. A survey was not completed.

By letter dated June 19, 1996, Mr. Rossignol informed counsel for the Boy Scouts of America of his intent to have a survey performed on the property on June 24, 1996, the day before the formal hearing was to commence. During a telephone conference on June 21, 1996, Mr. Rossignol was informed by the undersigned that he had not timely performed the survey (the deadline for exchanging exhibits had passed) and, therefore, the survey would not be allowed. The issue of relevancy of the survey, which counsel for the Boy Scouts of America attempted to raise, was not reached.

During the formal hearing, Mr. Rossignol referred to a letter dated June 6, 1996, in which he had informed counsel for the Boy Scouts of America of his intention to have a survey performed after the deadline for exchanging exhibits. In light of this letter, which the undersigned was not aware of prior to the commencement of the hearing, the undersigned informed the parties that he would reconsider the denial of Mr. Rossignol's request to have a survey completed.

After due consideration of the evidence presented by Mr. Rossignol during the formal hearing of this matter and arguments concerning the purpose of the survey, it was concluded that the survey was not likely to lead to the discovery

of relevant evidence in this matter. Mr. Rossignol and the Boy Scouts of America were, therefore, informed that the survey would not be allowed.

Prior to the formal hearing the parties filed a Notice of Settlement Conference in which it was stipulated that the following issues remained to be resolved:

1. Whether the purpose of the proposed dock is for private use;

   
   

2. Whether the construction site of the proposed dock and boat ramp is in an artificially created waterway;

   
   

3. Whether construction of the proposed dock will violate existing water quality standards; and

   
   

4. Whether construction of the proposed dock will impede navigation.

   
   

   At the formal hearing, Petitioner presented the testimony of Samuel E. Wampler, Glen Boe, William H. Benson and Joseph E. Campbell. Petitioner offered seven exhibits for identification. Petitioner's exhibits 1-6 were offered and accepted into evidence.

   
   

   Safety Harbor Property Owners' Association offered one exhibit. The exhibit was rejected. No other evidence was offered by Intervenors.

   
   

   Respondent, Boy Scouts of America, presented the testimony of Mr. Wampler, Mr. Boe, Robert A. Smith and Jean F. "Niko" Reisinger. Mr. Smith was accepted as an expert in wetland resource permitting and water quality standards and criteria. The Boy Scouts of America offered three exhibits. All three exhibits were accepted into evidence.

   
   

   Respondent, the Department of Environmental Protection, presented the testimony of Blake N. Traudt. Two exhibits were offered by the Department of Environmental Protection. Both were accepted into evidence.

   
   

   On August 1, 1996, a transcript of the formal hearing was mailed to the Division of Administrative Hearings. Proposed recommended orders were, therefore, to be filed on or before August 12, 1996. On August 8, 1996, Mr. Rossignol filed a request for an extension of the time for filing proposed orders. An extension to August 19, 1996, was granted.

   
   

   Proposed orders were filed by Petitioner, the Department of Environmental Protection and the Boy Scouts of America. The proposed orders filed by the parties contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Intervenors did not file proposed orders.

   
   

   FINDINGS OF FACT

   
   

   1. The Parties.

      
      

      1. Petitioner, Charles F. Rossignol, owns real property located at 253 Tollgate Boulevard, Islamorada, Florida.

      2. Respondent, the Boy Scouts of America (hereinafter referred to as the "Boy Scouts"), is a not-for-profit organization. The Boy Scouts is exempt from federal income tax as a 501(c)(3) organization.

         
         

      3. Respondent, the Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the responsibility of administering the provisions of Chapter 403, Florida Statutes. Among other things, the Department is charged with the responsibility of determining whether proposed projects are exempt from wetland resource permitting pursuant to Section 403.813(2)(c) and (i), Florida Statutes.

         
         

      4. No evidence concerning the Intervenors was presented.

         
         

      5. The parties stipulated that Mr. Rossignol and the Intervenors have standing to participate in this proceeding.

         
         

   2. The Boy Scouts' Florida Sea Base.

      
      

      1. The Boy Scouts own and operate a Boy Scout facility on Lower Matecumbe Key, Monroe County, Florida. The facility is known as the Boy Scouts of America Florida Sea Base.

         
         

      2. The Boy Scouts have owned the Sea Base since May 15, 1980.

         
         

      3. The Sea Base is operated exclusively by employees of the Boy Scouts.

         
         

      4. The Sea Base is used as a base for various aquatic programs offered by the Boy Scouts. Those activities include boating, swimming and SCUBA diving certification.

         
         

      5. Only Boy Scouts sanctioned groups are allowed to use the Sea Base and its facilities.

         
         

      6. Fees are paid for groups attending activities at the Sea Base. Those fees do not provide for the right to access the proposed dock or boat ramp at issue in this proceeding.

         
         

      7. Boats owned by the Boy Scouts at the Sea Base include eight twenty- five foot dusky, two twenty-five foot privateers and one forty-five foot catamaran.

         
         

      8. The Boy Scouts also charters sailboats from third parties for use in activities associated with the Sea Base. Captains for the sailboats are provided as part of the charter. The sailboats are maintained by the persons from whom the boats are chartered and not by the Boy Scouts.

         
         

      9. Boats tie up at docks located at the Sea Base. Those docks are located on the bay side of Lower Matecumbe. The proposed dock and boat ramp at issue in this proceeding are located on the opposite side of the Sea Base property.

         
         

      10. No public use of Boy Scouts docks is allowed at the Sea Base. Boy Scouts' insurance coverage at docks only extends to the use by Boy Scouts personnel.

   3. The Boy Scouts' Proposed Dock and Boat Ramp.

      
      

      1. The proposed dock and boat ramp are to be constructed on a body of water know as Dolphin waterway.

         
         

      2. Programs carried on at the Sea Base and support functions are generally separated. The proposed dock and boat ramp will be used for support functions and will be located in an area that is fenced off from program areas. The area will only be accessible by Boy Scout personnel.

         
         

      3. Boy Scouts' program participants will not be allowed to use the proposed dock or boat ramp. No passenger loading or unloading will take place at the proposed facilities.

         
         

      4. The proposed dock and boat ramp will be utilized to perform minor maintenance of Boy Scout vessels. The proposed dock and boat ramp will not, however, be utilized for fueling, lubrication, oil changes or similar functions.

         
         

      5. The proposed dock and boat ramp are for the private use of the Boy Scouts. The public will not be allowed access to the proposed dock or boat ramp.

         
         

   4. The Waterway Location of the Proposed Dock and Boat Ramp.

      
      

      1. The proposed dock and boat ramp are to be located on a waterbody identified as Dolphin Waterway. Access to the site is through a waterbody identified as Hurricane Creek.

         
         

      2. Viewed from the south, Hurricane Creek, in part, looks like a question mark. Along the straight portion of the "question mark", two canals run to the east from Hurricane Creek. The first canal is identified as Bonita Waterway. The second canal is Dolphin Waterway. Dolphin Waterway is located at the base of the "question mark".

         
         

      3. The proposed dock and boat ramp are to be located on Dolphin Waterway at the bottom of the "question mark".

         
         

      4. Before development took place on Lower Matecumbe, Hurricane Creek was a natural waterbody. See DEP exhibit 2.

         
         

      5. While some of the natural features of Hurricane Creek still appear to exist, a large portion of Hurricane Creek no longer exists as a result of dynamiting or dredge and fill activities, including the creation of Dolphin Waterway and Bonita Waterway.

         
         

      6. Hurricane Creek, Bonita Waterway and Dolphin Waterway are bordered by residential dwellings.

         
         

      7. The current condition of waterways at the location of the proposed dock and boat ramp is a classic dredge and fill subdivision.

         
         

      8. The waterway that connects Bonita Waterway and Dolphin Waterway is of a uniform depth of approximately four and a half feet with no irregularities in the bottom. Bonita Waterway, Dolphin Waterway and the waterway that connects them are canals dredged from upland.

      9. The waterway at the proposed location of the dock and boat ramp constitutes an artificially created waterway.

         
         

   5. Impact of the Proposed Dock and Boat Ramp on Navigation.

      
      

      1. The proposed boat ramp is designed and will be constructed so that the tow of the ramp will be located at three feet of water depth. The proposed dock is designed and will be located at four feet of water depth at mean low tide.

         
         

      2. Boats that will access the dock and boat ramp have, in general, a draft of one and a half feet.

         
         

      3. The average water depth in the center of the water course located in the vicinity of the proposed dock and boat ramp is approximately four and a half feet at average tide. Average tide is approximately half way between the mean high tide line and the mean low tide line.

         
         

      4. The average width of the water body through which boats will travel to the proposed dock and boat ramp is approximately 125 to 150 feet.

         
         

      5. The location of the proposed dock and boat ramp is on navigable waters. Adequate navigation access to the proposed boat ramp exists.

         
         

      6. Construction of the proposed dock will not impede navigation.

         
         

   6. Impact of Construction of the Dock on Water Quality.

      
      

      1. Construction of the dock will generate little turbidity.

         
         

      2. The Boy Scouts intend to utilize turbidity screens to prevent silt from escaping the immediate area of where construction of the dock will take place.

         
         

      3. Turbidity screens constitute the best reasonable method of preventing violation of water quality standards during construction of the proposed dock.

         
         

      4. The method of construction and the means of containing turbidity proposed for the proposed dock and boat ramp will insure that construction does not violate existing water quality standards.

         
         

   7. The Department's Determination of Exemption.

1. In April of 1995 Glen Boe & Associates, Inc., on behalf of the Boy Scouts, submitted a Joint Application for Works in the Waters of Florida to the Department. The Department was requested to determine whether the proposed construction of a dock and boat ramp on Boy Scouts' property was exempt from the requirement of obtaining a wetland resource permit.

   
   

2. By letter dated May 11, 1995, the Department notified the Boy Scouts that the proposed dock and boat ramp project was exempt from the requirement of obtaining a wetland resource permit under Sections 403.813(2)(c) and (i), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

3. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes (1995).

   
   

   1. Burden of Proof.

      
      

4. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); and Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

5. In this case the Boy Scouts have the ultimate burden of proving entitlement to an exemption from obtaining a wetland resource permit pursuant to Section 403.813, Florida Statutes. The Boy Scouts met that burden.

   
   

   1. Exemption of the Proposed Boat Ramp.

      
      

6. Section 403.813(2)(c), Florida Statutes, exempts the construction of boat ramps from the need for a wetland resource permit under the following circumstances:

   
   

   1. No permit under this chapter . . . shall be required for activities associated with the following types of projects; . . .

      * * *

      (c) The installation and maintenance to design specifications of boat ramps on artificial bodies of water where navigational access to the proposed ramp exists . . . .

      
      

7. The evidence in this case supported a finding that the boat ramp proposed by the Boy Scouts will be located on an artificial body of water.

   
   

8. Additionally, although there is no definition of an artificial body of water for purposes of Section 403.813(2), Florida Statutes, the conclusion that the waters of the proposed boat ramp are artificial is consistent with Rule 62- 312.050(F), Florida Administrative Code, which provides that "[f]or the purpose of this exemption, artificial bodies of water shall include, but not be limited to, residential canal systems." The evidence in this case supported a finding that Dolphin Waterway is a "residential canal system."

   
   

9. The evidence also proved conclusively that the waterways leading to the proposed boat ramp provide navigational access to the boat ramp.

   
   

10. The evidence, therefore, supports a conclusion that the proposed boat ramp is exempt from the requirement of a wetland resource permit pursuant to Section 403.813(2)(c), Florida Statutes.

    
    

    1. Exemption of the Proposed Dock.

    
    

11. Section 403.813(2)(i), Florida Statutes, exempts the construction of docks from the need for a wetland resource permit under the following circumstances:

    
    

    1. No permit under this chapter . . .

       shall be required for activities associated

       with the following types of projects; . . .

       * * *

       (i) The construction of private docks . . . in artificially created waterways where such construction will not violate existing water quality standards, impeded navigation . . . .

       
       

12. The evidence in this case proved that the dock proposed by the Boy Scouts will be for private use. It will not be open to the general public.

    
    

13. The evidence also proved that the proposed dock will be constructed on an artificially created waterway, will not violate existing water quality standards and will not cause any impediment to navigation.

    
    

14. The evidence, therefore, supports a conclusion that the proposed dock is exempt from the requirement of a wetland resource permit pursuant to Section 403.813(2)(i), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final

Order dismissing the request for hearing filed by Charles F. Rossignol.

DONE and ENTERED this 30th day of September, 1996, in Tallahassee Florida.

LARRY J. SARTIN, 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 30th day of September, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5634

Petitioner and Respondents have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Mr. Rossignol's Proposed Findings of Fact 1-4 Argument.

5-6 Not supported by the weight of the evidence.

7 Not relevant. 8-10 Argument.

1. Accepted in 11.

2. Not supported by the weight of the evidence.

3. Argument.

4. Not supported by the weight of the evidence.

5. Not relevant.

6. Argument.

17-18 See 24.

19-20 Argument.

21 See 25-29.

22 Not supported by the weight of the evidence.

The Department's Proposed Findings of Fact

The Boy Scouts' Proposed Findings of Fact

1. Accepted in 6.

2. Accepted in 2.

3. Accepted in 3.

4. Accepted in 41.

5. Hereby accepted.

6. Accepted in 6-7.

7. Accepted in 8.

8. Accepted in 12.

9. Accepted in 13.

10. Accepted in 14.

11. Accepted in 10.

12. Accepted in 11.

COPIES FURNISHED:

Charles F. Rossignol

253 Tollgate Boulevard Islamorada, Florida 33036

Nicholas Mulick, Esquire

81990 Overseas Highway, Suite 201

Islamorada, Florida 33036

William J. Roberts, Esquire

217 South Adams Street Tallahassee, Florida 32301

Melease A. Jackson, Esquire Assistant General Counsel Lynette L. Ciardulli Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Richard D. Spohn

Safety Harbor Property Owners Association

112 Willow Lane Islamorada, Florida 33036

Donald Houder, President

Tollgate Shores Homeowners Association, Inc.

217 Tollgate Boulevard Islamorada, Florida 33036

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

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 95-005634

Orders for Case No: 95-005634