STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR PIVIROTTO & ANN H. PIVIROTTO, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0870

) JOINT FACILITIES BOARD OF RIVER OAK'S )

H.O.A. AND LITTLE OAKS H.O.A. and ) SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

)

Respondents. )

) LARRY VIENS, DEBORAH VIENS, and THE ) LOXAHATCHEE LANDING PROPERTY OWNERS ) ASSOCIATION, )

)

Petitioners, )

)

vs. ) CASE NO. 96-0871

) JOINT FACILITIES BOARD OF RIVER OAKS )

H.O.A. AND LITTLE OARS H.O.A. and ) SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing Officer, on June 27, 1996, in West Palm Beach, Florida

APPEARANCES

For Petitioners: Arthur Pivirotto and Ann H Pivirotto:

William A. Fleck, Esquire

KRAMER, ALI, LAMBERT, FLECK & CAROTHERS

Attorneys at Law

6650 West Indiantown Road, Suite 200

Jupiter, Florida 33458

and

Charles H. Burns, Esquire 1080 East Indiantown Road Jupiter, Florida 33477

For Respondent: South Florida Water Management District:

Scott Allen Glazier, Esquire

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406

For Respondents, Joint Facilities Board of River Oaks H.O.A.

and Little Oaks H.O.A.:

Donald S. Fradley, Esquire

27 Pennock Lane Jupiter, Florida 33458

STATEMENT OF THE ISSUE

The issue in this case is whether an Application to the South Florida Water Management District for Authority to Utilize Works or Land of the District filed by Respondents, Joint Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A., should be approved by the South Florida Water Management District.

PRELIMINARY STATEMENT

Respondents, Joint Facilities Board of River Oaks H.O.A. and Little Oaks H.O.A. filed an Application to the South Florida Water Management District for Authority to Utilize Works or Land of the District. The application was designated Right of Way Occupancy Permit Application Number 94-1005-2. After review of the application, the South Florida Water Management District proposed to approve the application and issue the right of way occupancy permit sought by the Joint Facilities Board.

On or about February 9, 1996, Petitioners in case number

96-0870, Arthur Pivirotto and Ann H. Pivirotto, filed a Petition for Formal Proceedings per 40E-1.521, F1. Admin. Code and 120.57

F.S. On or about the same date, Petitioners in case number 96- 0871, Larry Viens, Deborah Viens and The Loxahatchee Landing Property Owners Association, Inc., filed a Petition for formal Proceedings per 40E-1.521 F. Admin. Code and 120.57 F.S. Both petitions challenged the decision to grant the application.

The South Florida Water Management District filed both petitions with the Division of Administrative Hearings on February 20, 1996. The petition filed by the Pivirottos was designated case number 96-0870. The petition filed by the Viens

and The Loxahatchee Landing Property Owners Association, Inc., was designated case number 96-0871. Both case were assigned to Hearing Officer Joyous D. Parrish.

By Order of Consolidation entered March 13, 1996, Hearing Officer Parrish consolidated the two cases. By Amended Notice of Hearing, Hearing Officer Parrish scheduled the final hearing of these case for June 27, 1996.

Both cases were transferred to the undersigned on June 24, 1996.

On June 19, 1996, the parties in case number 96-0870 filed a Parties' Joint Prehearing Statement. The parties included a Statement of Controversy, a Statement of Basic Positions, a list of proposed exhibits, a list of witnesses, and a request that official recognition of Chapter 373, Florida Statutes, and Chapters 40E-6 and 40E-62, Florida Administrative Code, be taken. The request for official recognition was granted.

The parties also stipulated in the Parties' Joint Prehearing Statement to the issues of law and fact which the parties were in agreement on and the issues of law and fact which were in dispute.

At the commencement of the formal hearing, a Stipulation for Settlement was filed in case number 96-0871. Pursuant to the Stipulation, the parties in case number 96-0871 resolved their dispute. The Stipulation is to take effect "upon adoption by and execution on behalf of the Governing Board of the District . . . ." The Stipulation is to be submitted to the 'District's Governing Board . . . at its regulatory meeting scheduled for August 15, 1996 (or the next regularly scheduled meeting, after the Division of Administrative Hearings relinquishes jurisdiction for Governing Board consideration of this Stipulation)." The South Florida Water Management District requested that jurisdiction over case number 96-0871 be relinquished at the same time that this Recommended Order is entered. Jurisdiction over case number 96-0871 will be relinquished simultaneously with the entry of this Recommended Order.

Both the South Florida Water Management District and the Joint Facilities Board filed a Motion to Strike and Motion in Limine just prior to the formal hearing. These motions were provided to the undersigned at the commencement of the formal hearing. The motions suggested that issues of law and fact

which the parties stipulated remained in dispute involved matters over which the South Florida Water Management District, and, thus, the Division of Administrative Hearings, had no jurisdiction. Respondents requested that those issues and disputed facts be struck. After hearing argument of the parties on the motions, the motions were granted.

Following the ruling on the motions to strike and motions in limine, Petitioners in case number 96-0870 proffered ten exhibits. The South Florida Water Management District proffered one exhibit. Petitioners offered no other evidence.

Prior to the commencement of the formal hearing, Respondents, Joint Facilities Board of River Oaks H.O.A., and Little Oaks H.O.A., filed a Motion for Attorney's Fees, seeking attorney fees from Petitioners. Petitioners filed a Motion for Attorney's Fees seeking attorney fees from the Joint Facilities Board. After consideration of the motions, they are both denied.

A transcript of the formal hearing was filed on July 17, 1996. Petitioners and the South Florida Water Management District filed proposed orders on or before July 17, 1996.

Petitioners' proposed order does not contain any proposed findings of fact. The South Florida Water Management District's proposed order contains two proposed findings of fact. Both proposed findings are hereby accepted.

FINDINGS OF FACT

1. Petitioners, Arthur Pivirotto and Ann H. Pivirotto presented no evidence in this matter.

   
   

2. Petitioners have, therefore, failed to meet their burden of proof that Right of Way Occupancy Permit Application Number 94-1005-2 should not be granted.

   
   

   CONCLUSIONS OF LAW

   
   

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).

   
   

4. Section 373.085, Florida Statutes, authorizes water management district governing boards to prescribe the manner in which the works and lands of the water management district may be used by others and the issuance of permits therefore. The

   criteria for such use have been established by the South Florida Water Management District in Rule 40E-6.091, Florida Administrative Code.

   
   

5. The conditions for obtaining a right of way permit of the kind sought by the Joint Facilities Board of River Oaks

   H.O.A. and Little Oaks H.O.A. have been established in Rule 40E- 6.301, Florida Administrative Code.

   
   

6. Mr. and Ms. Pivirotto had the burden of proving in this proceeding that the South Florida Water Management District's decision to issue a right of way permit was contrary to the statutes and/or rules governing the issuance of right of way permits and the use of works and lands of the South Florida Water Management District. See Rule 40E-1.544, Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

7. The issues raised by Mr. and Ms. Pivirotto in the Parties' Joint Prehearing Statement involved matters and issues which the South Florida Water Management District is not required or authorized to consider pursuant to Chapter 373, Florida Statutes, or Chapters 40E-6 or 40E-62, Florida Administrative Code.

   
   

8. No proof was offered by Mr. and Ms. Pivirotto to support a finding that the decision to issue the right of way permit in this matter is not consistent with the statues and rules governing its issuance and governing the use of works and lands of the South Florida Water Management District.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the South Florida Water Management District enter a Final Order in case number 96-0870 dismissing the Petition for Formal Proceedings Per 40E-1.521 Fl. Admin.

Code and 120.57 F.S.

DONE and ENTERED this 2nd day of August, 1996, in Tallahassee Florida.

LARRY SART1N, 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 August, 1996.

COPIES FURNISHED:

William A. Fleck, Esquire 6650 West Indiantown Road Suite 200

Jupiter, Florida 33458

Charles H. Burns, Esquire 1080 East Indiantown Road Jupiter, Florida 33477

Scott Allen Glazier, Esquire

South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406

Donald S. Fradley, Esquire

27 Pennock Lane Jupiter, Florida 33458

Alan J. Cooper, Esquire Tequesta Corporate Center

250 Tequesta Drive, Suite 200 Tequesta, Florida 33469

Samuel E. Poole, III, Executive Director Department of Environmental Protection South Water Management District

Post Office Box 24680

West Palm Beach, Florida 33146

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.

Docket for Case No: 96-000870

Orders for Case No: 96-000870