DEP FO #10-0020

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

JOHN CARSON,

Petitioner,

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondent.

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) OGC CASE NO. 08-1617

) DOAH CASE NO. 08-4829

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FINAL ORDER

On November 12, 2009, an Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO") to the Department of Environmental Protection ("DEP" or "Department") in the above captioned proceeding. The RO is attached hereto as Exhibit A. The RO indicates that copies were served to counsel for the Petitioner, John Carson, and counsel for the Department. No Exceptions were filed by any party. This matter is now before me for final agency action.

BACKGROUND

In March 2008, the Petitioner submitted an application for authorization to construct an 1,160-square-foot, private, single-family dock on the east side of South Riverside Drive, directly across from Petitioner's lot located on the west side of South Riverside Drive in New Smyrna Beach; Volusia County, Florida. Florida Administrative Code Rule 18-21.004(3)(b) requires an applicant for proprietary approval of a dock on sovereignty submerged lands to provide satisfactory evidence of sufficient upland

Filed January 19, 2010 9:44 AM Division of Administrative Hearings.

interest. Following its initial review of the Petitioner's application, the Department requested additional information from the Petitioner to show that he owns the shoreline where the dock would be constructed or otherwise has riparian rights to construct a dock at that location. The Petitioner submitted additional title information to the Department, but the Department did not consider the evidence satisfactory under Rule 18-21.004(3)(b).

On May 22, 2008, the Department issued a noticed general permit (regulatory approval) to the Petitioner to construct the private, single-family dock on the Indian River in New Smyrna Beach. However, the Department denied the Petitioner's request for consent to use state sovereignty submerged lands for that purpose (proprietary approval). The stated reason for the denial was the Petitioner's failure to provide satisfactory evidence of sufficient upland interest. The Petitioner filed a petition for hearing to challenge the denial and the Department referred the matter to DOAH to conduct an evidentiary hearing. The final hearing commenced on May 6, 2009, and was completed on September 17, 2009. Subsequently, a two-volume Hearing Transcript was filed with DOAH. The parties filed proposed orders with the ALJ, who then issued his RO on November 12, 2009.

THE RECOMMENDED ORDER

In the RO the ALJ recommended that the Department's final order deny the Petitioner's application for consent to use sovereign submerged lands. (RO p. 12). The ALJ concluded that the Petitioner failed to prove by a preponderance of the evidence that he has sufficient upland interest as required by Florida Administrative Code Rule

18-21.004(3)(b). Therefore, the Petitioner is not entitled to construct a dock on the sovereignty submerged lands of the Indian River. (RO ,m 7-16, 30, 33, 38).

CONCLUSION

The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254, 256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to certain findings of fact the party "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003).

Having considered the applicable law and being otherwise duly advised, it is ORDERED that:

1. The Recommended Order (Exhibit A) is adopted in its entirety and incorporated herein by reference.

2. The Petitioner, John Carson's, application for consent to use sovereign submerged lands in File No. 64-287397-001 is DENIED.

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk

of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed with the clerk of the Department.

DONE AND ORDERED this y of January, 2010, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED ON THIS DATE PURSUANT TO§ 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

CERTIFICATE OF SERVICE

i HEREBY CERTIFY that a copy of the foregoing Final Order was mailed to: David C. Carson, Esquire

312 Southwind Court

Apartment 101

North Palm Beach, FL 33408 electronically filed with:

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550 hand delivered to:

Nona R. Schaffner, Esquire

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this l ay of January, 2010.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

Z=s;

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 08-004829

Orders for Case No: 08-004829