Findings Of Fact Respondent is the owner and developer of the Plaza Venetia Marina, located in Biscayne Bay in Dade County, Florida, immediately north of the Venetian Causeway. The marina is constructed on submerged lands leased from the Board of Trustees of the Internal Improvement Trust Fund. On May 4, 1976, DER issued Permit No. 13-30-0364-6E to Respondent. That permit authorized the construction of two concrete marina docks, one "T" shaped and 255 feet long, and the other "J" shaped and 500 feet long. The project site is north of the Venetian Causeway on the western edge of Biscayne Bay, Section 31, Township 53 North, Range 42 East, Dade County, Florida. On August 18, 1977, DER issued Permit No. 13-30-3984 to Respondent. That permit authorized the construction of a 700 foot long "J" shaped pier with 24 finger piers and associated mooring pilings, and the construction of a 280 foot long "T" shaped pier. This permit authorized construction to be undertaken directly north of the docks authorized by Permit No. 13-30-0364-6E described above. On August 18, 1977, Respondent applied to DER's West Palm Beach office for a permit to construct the center pier of the Plaza Venetia Marina. On October 27, 1977, DER issued Permit No. 13-30-0740-6E to Respondent. This permit, which is the only one of the three permits at issue herein, authorized construction of a boat tie-up and fueling facility for a public marina. This facility represented a final phase of a master plan which includes the two other marinas with tie-up accommodations authorized by Permit Nos. 13-30-0364-6E and 13-30-3984. The drawings which accompanied the permit application carried the designation "FUEL" on the large platform at the end of the center pier of the marina. The cover letter from Respondent's authorized agent explained that " . . . the fueling area has been made sufficiently large so as to isolate the fuel pumps." No specific mention was made in the application or supporting materials of any building to be constructed on the central pier, and none of the permit drawings initially filed with DER depict any such building. DER employees who processed the permit, however, knew at some time during the processing of the permit application that some sort of structure would likely be constructed on the platform at the end of the center pier, although the plans did not disclose such a building, and the agency made no inquiries about, nor requested any additional information from Respondent concerning the type of structure contemplated. At the time of the issuance of Permit No. 13-30-0740-6E Respondent did not know the exact nature, size, or height of any structure that it might wish to build on the central platform. At the time, Respondent had only a conceptual idea of a structure that might accommodate the uses it contemplated for the platform. The words "fueling station" appear on the platform at the end of the center pier in one of the drawings attached to Permit No. 13-30-0740-6E. That drawing was not initially filed with the original permit application, but was provided during the permitting process by Respondent prior to issuance of the permit. Permit No. 13-30-0740-6E was issued to Respondent on October 27, 1977, pursuant to the authority granted DER under Chapters 253 and 403, Florida Statutes. Nowhere in the permit is there any reference to Section 258.165, Florida Statutes. The permit, by its expressed terms, authorized the following: To construct a boat tie-up and fueling facilities [sic] for a public marina. The facility will extend approximately 390 feet into Biscayne Bay from the bulkhead line. The dock will provide tie-up spaces for 20 boats and six fuel slips, and will contain floating oil collars in case of oil or gasoline spillage. This facility represents the final phase of a master plan which includes two other marinas with tie-up facilities . . . On January 11, 1979, some approximately fourteen months after issuance of the permit for the center pier, Respondent sent a letter to DER's West Palm Beach office which read as follows: Enclosed please find a copy of a letter as sent to the Army Corps, re: the service facility you and I discussed for the already approved fuel dock (State No. 13-30-0740-6E) for the Plaza Venetia Marina. I also enclose copy of the plans. Please review as quickly as possible since we intend to start construction on the marina within 30 to 45 days. (Emphasis added.) Enclosed with the January 11, 1979, letter to DER was a copy of a January 11, 1979, letter to the Army Corps of Engineers which read as follows: Recently I reviewed with [a Corps representative] the placement of a small service accommodation facility on the already approved fuel dock for the Plaza Venetia Marina . . . I left a set of plans with [the Corps] at the Corps office in Miami Beach. The facility is in close keeping with the permitted use of the marina. It will occupy less than half the already approved area of the fueling facility. It will be constructed on an already permitted facility. Included are a small bait and tackle shop; convenience store; captains' office; observation area and required bathrooms. The discharge from the bathrooms will flow directly into the main County sewer disposal system and will utilize a sewer pump-out facility located on the fuel dock. * * * After carefully reviewing my existing permit, the limited nature of the facility described, and its sole purpose of servicing the already permitted marina, please advise me if any modifications are required. I look forward to hearing from you as quickly as possible on this matter since construction of the marina is projected to begin within the next 30 to 45 days. A copy of the floor plan of the proposed building was attached to the January 11, 1979, letter received by DER. This floor plan indicates areas to be included in the building for bait and tackle facilities, a food store, storage areas, restroom facilities, and a marina office. Also shown on the floor plan is a storage area for electric carts to be used in servicing vessels utilizing the marina facility. The record in this cause establishes that Respondent never intended its January 11, 1979, letter to DER to be a request for a permit modification or an application for a new permit. Instead, the letter was intended only as a request for DER review of and comments on the proposed structure to be built at the end of the central pier. DER representatives in its West Palm Beach office forwarded the letter to the Tallahassee office of DER. DER never responded either orally or in writing to Respondent's communication of January 11, 1979, enclosing the building plan. On June 19, 1979, DER had opened its file No. 13-9916 in its standard form dredge and fill permitting section in Tallahassee in response to a letter received from Respondent requesting the addition of some dolphin pilings along the bulkhead at the Plaza Venetia Marina. The request from Respondent was treated as standard form application because the scope of the entire marina project exceeded short-form criteria. After receiving this request from Respondent, DER sent a completeness summary to Respondent within 30 days of receipt of the application requesting that Respondent provide approval from the Department of Natural Resources for the use of sovereignty submerged lands. Through various correspondence, this application was expanded to include several additional modifications to the overall marina, including reconfiguration of the fuel dock, addition of finger piers, reconfiguration of the "T" docks, and addition of a 12-foot boardwalk. Finally, the application was modified so that it constituted an application to consolidate the three existing permits. On January 29, 1980, Respondent submitted the last item of information required by the completeness summary except for DNR approval for use of sovereignty submerged lands. The aforementioned letter of January 11, 1979, from Respondent, which included the building floor plan, was apparently placed in DER file No. 13-9916 relating to Respondent's requested permit modification. Although the floor plan is contained in this file, the record in this cause clearly establishes that neither Respondent nor DER treated either the January 11, 1979, letter or the enclosed plan as a request for modification of Permit No. 13-30-0740-6E. DER file No. 13-9916 sat dormant for almost three years awaiting DNR consent for the use of state-owned lands. By letter dated July 10, 1981, DER requested Respondent to indicate whether it wished to pursue the permit modification application further since it had been 1,085 days since DER had notified Respondent of the necessity to furnish notification from DNR concerning further use of state sovereignty submerged lands. By letter dated July 15, 1981, Respondent withdrew its permit modification application. On April 20, 1979, the City of Miami issued a valid building permit for the marina fueling station. Respondent notified DER in July, 1979, that it was beginning construction of the marina. Construction of the central pier began on July 16, 1979, and ended on June 11, 1980. Construction of the fueling platform began on February 28, 1981, with erection of the fueling station walls beginning sometime after April 1, 1981. Subsequent to the commencement of construction DER representatives inspected the building site on several occasions. Respondent was not made aware in advance of when these inspections would occur since they were scheduled at the sole discretion of DER. DER first learned of the actual construction of the marina fueling station after receipt of a citizen complaint on December 1, 1981. Upon inspection of the site by DER personnel on December 2, 1981, it was discovered that the building on the fuel dock was partially complete with finish work and the placement of some interior and exterior walls remaining to be accomplished. DER served a warning notice on Respondent on December 7, 1981, advising Respondent of an alleged violation of its existing permit. A second warning letter was sent to Respondent on January 26, 1982, followed by the issuance of the Notice of Violation by DER. DER incurred costs and expenses of $405.40 in investigating the alleged violation. The structures authorized by Permit Nos. 13-30-0364-6E, 13-30-3984, and 13-30-0740-6E ("the structures") have been constructed by Respondent. The structures are located within the Biscayne Bay Aquatic Preserve ("the Preserve") established by Section 258.165, Florida Statutes. Biscayne Bay at the site of the structures is a navigable water of the State of Florida. A building with a floor area of approximately 3,800 square feet and a roof area of 5,292 square feet has been constructed at a cost of approximately $500,000 on the platform at the end of the center pier of the marina. The net area of the platform contains about 9,640 square feet. It has been stipulated by the parties that construction of the building on the center pier will not result in significant adverse water quality or biological impacts which were not contemplated when the above-referenced permits were issued for the marina. The building as presently constructed has provisions for the following uses: a waiting area for water-borne transportation, a bait and tackle shop and marine supply store, an electric cart parking and recharging station, and an attendant's room with cash register and equipment for the fuel pumps. All of these uses are customarily associated with the operation of marina facilities. The building as constructed differs in several minor respects from the one shown on the plans submitted to DER in the January 11, 1979, letter from Respondent. What had been shown on those plans as outdoor seating has been enclosed, walls and proposed uses have been relocated within the building, and the entire building has been moved back on the fuel dock. It is concluded, however, that these changes are of such a minor nature as to not constitute a material departure from the plans furnished to DER in January of 1979. As-built plans for the building have never been provided by Respondent to DER. At the time of Respondent's application for the permit for the center pier, DER rules required that a permit applicant provide cross-sectional drawings of proposed structures to be built in conjunction with docking facilities such as those proposed by Respondent. Drawings attached to the permit application show two cross sections through the center pier, but neither of these cross sections depict a building to be constructed on the pier. Respondent did not submit cross-sectional drawings for the building at the time of its application, and none had been submitted to DER as of the date of final hearing in this cause. However, DER at no time requested such cross-sectional drawings, despite the fact that those agency representatives processing Respondent's permit application assumed from the outset that some structure would and could be built by Respondent on the platform attached to the central dock under the terms of the October 27, 1977, permit. The estimated cost for removal of the building at the end of the central pier is $150,000-$200,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation. DONE AND ENTERED this 3rd day of June, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983. COPIES FURNISHED: Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Clifford A. Shulman, Esquire and Thomas K. Equels, Esquire Brickell Concours 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Lee Rohe, Esquire Assistant Department Attorney Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Boulevard Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, v. CASE NO. 82-1640 FLORIDA EAST COAST PROPERTIES, INC., Respondent. /
Findings Of Fact D.S.I. Forms, Inc. is a for-profit corporation with facilities in Palatka, Florida. It is the owner of a river- front house known as the "DSI Lodge," which is the location of the boat dock at issue here. The DSI Lodge has an existing boat dock similar to those of other waterfront homes in the area along this section of St. Johns River, which is a Class III Florida Water.1 The area is predominantly single family residential, but is not so restricted by zoning ordinance. The DSI Lodge is used as a weekend and holiday retreat by the owner of D.S.I. Forms, Inc., who resides in Atlanta, Georgia, and by his business and personal guests. Although the DSI Lodge has a business character, there is no charge to guests for using lodge or dock facilities. The proposed DSI dock extension would add a two-boat covered slip measuring 20 by 22 feet to the end of the existing dock. Since DSI only seeks mooring facilities for one additional boat,2 it has agreed with the Department of Natural Resources (DNR) to remove its inside boat slip. Although DNR was not a party to this proceeding, the Applicant's stated intent to remove a portion of the existing dock should be reflected in any permit issued by DER. The existing dock is approximately 700 square feet in surface area. With the application as now framed, the total surface area would exceed 1,100 square feet. However, with removal of the inside slip, the proposed dock area would apparently increase to less than 1,000 square feet, and thus may be exempt from DER permitting altogether.3 Petitioners presented a series of grievances concerning use of the DSI Lodge by inconsiderate guests. These complaints included discharging a rifle and fireworks, high speed operation of power boats adjacent to the river's edge (bulkhead) and congestion of boating activity resulting from numerous guests using the DSI facilities during holiday periods. The careless or congested boating activity may affect the quality of life for DSI Lodge neighbors and endanger wildlife such as manatee which sometimes inhabit these waters. However, it was not shown that the proposed dock extension would affect these environmental considerations since D.S.I. Forms, Inc. already owns and operates the boat which would be accommodated by the additional slip (see footnote 2 above). Further, the testimony of the DER field representative established that the presence of the extended dock, as well as its construction, would not degrade water quality.
Recommendation From the foregoing, it is RECOMMENDED that the Department of Environmental Regulation enter a final order issuing the proposed permit to D.S.I. Forms, Inc. with an added condition requiring removal of the existing inside boat-slip. DONE and ENTERED this 26th day of July, 1985 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
The Issue The issue presented is whether Respondent George Wentworth is entitled to a noticed general permit and consent to use sovereign submerged lands for a dock and boathouse.
Findings Of Fact On June 26, 1998, Respondent Wentworth submitted to the Department an application for a standard general permit to construct a boardwalk through mangroves on his property on Hutchinson Island in Stuart, Florida. On August 13, 1998, he revised his application by expanding it to include a dock with a U-shaped terminal platform and boat lift. His revised application was a notice of intent to use a noticed general permit rather than a standard general permit. The expanded project is in the Indian River Lagoon, which is classified as an Outstanding Florida Water and is within the Jensen Beach to Jupiter Inlet Aquatic Preserve (Class II waters of the State). His revised application form specifically advised that he was not seeking authorization to use the sovereign submerged lands over which his project would be constructed. Bruce Jerner, a Department employee in its Port St. Lucie office, processed Wentworth's application. He made a site visit, met with Wentworth's consultant, performed a survey of the seagrasses in the area of the project site, and placed a stake for the landward extent of the terminal platform for the dock which would allow Wentworth to avoid the existing seagrasses. While Wentworth's request for approval was being processed by the Department, Jerner had several conversations with Wentworth or his consultant. The project changed several times as to its dimensions, and Wentworth agreed to give the Department several extensions of the 30 days the Department had to object to the project before the noticed general permit would issue by operation of law. The last extension given would expire in October 1998. On September 23, 1998, Jerner was about to leave on vacation. He processed Wentworth's permit application that day, using the revised drawings submitted by Wentworth that same day. That day's drawings indicated a rectangular terminal platform instead of U-shaped and a notation indicating a boathouse and boat lift. In processing the application with the new drawings, Jerner did not consider the more stringent standards that apply in an aquatic preserve and did not consider any requirements of the local government, Martin County. He prepared a document which would grant approval by using various forms and piecing them together. He placed the document in the location for outgoing mail. Jerner did not have another staff person review the file, as required by Department procedures. Jerner did not then have the file reviewed by the administrator of the Department's Port St. Lucie office, as required by Department procedures. Although Jerner had the authority to sign a permit when the Department's administrator was absent from the office, no evidence was offered at the final hearing in this cause as to whether Melissa Meeker, the administrator of the office at the time, was in the office that day or not. The letter received by Wentworth was not signed and recited the wrong address for the project location. It also indicated that it was both a permit and an exemption from permitting. Although Wentworth is a state-certified general contractor, neither he nor his consultant contacted the Department to find out why the permit was unsigned, why the project location was wrong, or why the Department's letter referred to itself as being both a permit and an exemption. Further, they did not question why the attachments to the letter indicated that the project as approved could not be. The September 23, 1998, letter advised Wentworth that he could protect himself from third-party challenges to his noticed general permit and consent to use sovereign submerged lands by publishing notice in a local newspaper and/or by mailing a copy, by certified mail, to any known interested persons. The letter advised him that if he did those things, his permit would be beyond challenge after 21 days. Wentworth did neither. The permit letter mailed by Jerner authorized Wentworth to use sovereign submerged lands even though Wentworth's application specifically advised that Wentworth did not want the State's consent to use its land. The permit letter also authorized Wentworth to construct a 1,894 square foot single- family docking structure with a 236' x 4' access pier through jurisdictional wetlands and open water and a 23' x 50' boathouse located over the terminal access and mooring area. In December 1998 Wentworth faxed to Jerner a revised drawing of his dock and attendant structures. That drawing showed a boat shelter on one side of the access walkway and a traditional terminal platform on the other. A notation reflected that the boat shelter was reduced to 16' x 30'. The drawing was not signed or sealed. It was not accompanied by a request for modification. In an ensuing conversation Jerner told Wentworth that the drawing was probably something he could approve if Wentworth submitted a modification request with a signed, sealed copy of the drawing. Wentworth never did so. Since no modification was ever requested, one was never approved. Wentworth commenced construction, and he was contacted by Petitioners Urban, the adjoining landowners, and by Petitioners Vogel, nearby landowners. They objected to the very large structure he was constructing as was evident by the location and size of the pilings being put in place. They asked him to decrease the size of his boathouse, but he refused. In January 1999 the Vogels and the Urbans filed petitions with the Department seeking to have the Department reverse its approval of Wentworth's noticed general permit and its consent for Wentworth to use sovereign submerged lands. The Department contacted Wentworth and requested that he cease all construction activities until the merits of the petitions could be determined. Wentworth continued with the construction. On December 31, 1998, Martin County issued a stop work order against Wentworth's construction project for two reasons: first, the questions which had been raised by the Urbans and the Vogels regarding the validity of the Department's permit; and, second, the electrical work being performed on the project without a permit from Martin County. Wentworth ignored the County's stop work order and continued his construction. The project has been completed. On May 10, 1999, the Department issued a revised letter correcting the errors in its September 23, 1998, letter. The address of the project was corrected. The reference to Class III waters of the State was changed to Class II. The letter added language to reflect that the dimensions of the project may not be authorized. The references to an exemption from permitting were deleted. As constructed, the structure consists of a 236' x 4' access pier. Toward the end on one side is a 10' x 17' traditional terminal platform. On the other side is a 16' x 30' boathouse roof with a boat lift under it. Basically, the outline of the dock and attendant structures looks like a flagpole that runs east to west with a small flag at the southwest end and a large one at the northwest end. The total area that extends from the end of the access pier (not including the access pier) is approximately 650 square feet, and the total area for the entire structure is approximately 1,594 square feet. The access pier ends where the structure becomes wider than four feet, where the attached roof structure (boathouse or boat shelter) begins. The terminal platform begins at the landward extent of the boat shelter. The terminal platform, which includes both the traditional docking platform and the boathouse roof, far exceeds 160 square feet. The terminal platform (which includes the boathouse roof) is connected to the access pier, is located at the terminus of the facility, is designed to secure and load or unload a vessel, and is a water- dependent activity. However, the boathouse roof is not necessary for Wentworth to gain access to his boat or the water to conduct water-dependent activities. The dock access pier is not elevated a minimum of five feet above mean high water. The dock plank spacing is less than one-half inch. The access pier is located over a bed of seagrasses. The first eighty feet from the landward extent of the mangroves meets the definition of a Resource Protection Area 1, an area with the highest level of resources. From that point outward, there are no seagrasses, but since seagrasses are migratory, there is the potential for seagrasses absent extensive shading. The potential for resources under the remaining access pier, the terminal platform, and the boathouse places that part of the structure in a Resource Protection Area 2. The boathouse roof is elevated at least 17' above mean high water and will cast a shadow over resources in the area. Shading of resources by structures in an aquatic preserve can adversely impact marine grass, fish, birds, and benthic organisms. A noticed general permit is a form of regulatory authorization whereby if all criteria are met, the applicant qualifies for a regulatory permit without the agency having to issue a permit. The noticed general permit is not an authorization to use state lands nor is it linked to the state lands authorization. Proprietary authorization is a separate authorization to use state-owned submerged lands. Nonetheless, the two prongs of authorization are covered by one document/letter in an effort to streamline the permitting process. The September 23, 1998, and May 10, 1999, letters to Wentworth each had attachments which addressed, among other things, the specific criteria that must be met to qualify for state lands authorization. The state lands (proprietary) authorization has more stringent size and design requirements than the noticed general permit (regulatory) authorization. Although Wentworth's dock structure meets the criteria for a noticed general permit, it does not meet the criteria for consent to use sovereign submerged lands. The completed dock structure is quite visible from the homes of the Urbans and the Vogels. They had purchased their homes years before Wentworth constructed his dock and boathouse and had relied on the pristine character of the water and their unobstructed view in making their purchases. They relied on the fact that they were purchasing property in an aquatic preserve with special protection afforded by the restrictions on construction in the preserve. The Urbans have a dock and own a boat which they use on the Lagoon. The Vogels do not have a boat, but they use the Lagoon as guests of others who own boats. There are no other boathouses within view of the Vogel or the Urban properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Wentworth's application for a noticed general permit and for consent to use sovereign submerged lands conditioned on the entire terminal platform not exceeding 160 square feet, the entire terminal platform not exceeding eight feet in width, the deck plank spacing being at least one-half inch wide, and the access pier being elevated to five feet above mean high water. If Wentworth is not willing to meet such conditions, his application for a noticed general permit and consent to use should be denied. DONE AND ENTERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1999 COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 William E. Guy, Jr., Esquire Law Offices of William E. Guy, Jr. Post Office Box 3386 Stuart, Florida 34995 Ricardo Muratti, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether petitioners have timely availed themselves of a clear point of entry into administrative proceedings on Mr. and Mrs. Rankin's application for a permit to build a dock and, if so, whether the permit application should be granted?
Findings Of Fact On April 12, 1982, Frederick W. Rankin applied for a dredge and fill permit to construct a dock six feet wide and 300 feet long in the waters of Bayou Chico in Escambia County, Florida. Paralleling the dock on either side of the outboard end, two rows of mooring pilings 19.5 feet distance from the dock were proposed in the application. On April 20, 1983, Mark N. Snowdon, an employee of the Department of Environmental Regulation (DER) inspected the site, and, in an official DER permit application appraisal dated April 23, 1982, reported: Two large support vessels (crew boats) are moored at a small pier immediately east of the site. A commercial marina facility i[s] located directly across the bayou (north) from the project site. Bayou Chico is approximately 0.25 mile wide at this point. DER Exhibit No. 4. Between the crew boats' dock (Gulfwater Marine) and the site proposed for the Rankins' dock is the mouth of a small embayment (the bayouette). The Holzbauers own a house and lot, separated from the Rankins' lot by a parcel less than 75 feet wide, that fronts on the bayouette. PERMIT ISSUES DER issued a permit on June 9, 1982, and work began on the Rankins' dock on June 12, 1982. On the same day, Mr. Holzbauer inquired of the men putting in pilings whether DER had issued a permit for the work, then telephoned DER and asked DER's Mr. Fancher the same question. Mr. Fancher told Mr. Holzbauer that a permit had been issued, which was the first Mr. Holzbauer was told of issuance of the permit. As far as the evidence revealed, no notice of intent to issue preceded issuance of the permit. On June 26, 1982, the Holzbauers received a letter from W. Richard Fancher on behalf of DER, dated June 24, 1982, in which he stated: It is my understanding that, until recently, you had no knowledge of this private dock project. If this is correct, you may consider this formal notice of the activity. Should you object to this permit, including any and all of the conditions contained therein, you may file an appropriate petition for administrative hearing. This petition must be filed within 14 days of the receipt of this letter. Further, the petition must conform to the requirements of Part III, Chapter 17-1 and Section 28-5.201, Florida Administrative Code (copies enclosed). The petition must be filed with the Office of General Counsel, Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. If no petition is filed within the prescribed time, you will be deemed to have waived your right to request an administrative hearing on this matter. DER Exhibit No. 1. A copy of Mr. Fancher's letter to the Holzbauers was also sent to Mr. Rankin. On July 8, 1982, a letter from the Holzbauers to Ms. Tschinkel reached DER's Office of the Secretary, protesting issuance of the permit and alleging that the dock did not conform to permit conditions. 1/ This letter was referred to the Division of Administrative Hearings, whose Director entered an order, sua sponte, on July 28, 1982, that "[t]his matter is dismissed without prejudice." No. 82-1947. An amended petition dated August 4, 1982, reached DER's Office of the Secretary on August 9, 1982, and the Division of Administrative Hearings on August 20, 1982. No. 82-2314. NO PERMIT RELIANCE The dock has been continued to completion, at a cost of $11,000.00. As built, the dock veers out from shore at a more easterly angle than the permit purported to allow. Whereas the permit contemplated construction at an angle several degrees west of north, the dock has in fact been built at an angle about 15 degrees east of north. One result is that the end is some 90 feet east of the point contemplated by the permit. Although a DER employee testified that this deviation was "within reason," it is clearly a significant departure from what the permit putatively allowed. The Rankins only own 86 feet of bayou frontage. The mouth of the bayouette is no more than 110 feet across. The mooring pilings, moreover, have been set in two rows parallel to the dock not 19.5 feet on either side, but 40 feet from the west side of the dock and 30 feet from the east side. If any of the landowners on the bayouette (with one exception) tried to build a pier perpendicular to their shore line extending even half the length of the Rankins' dock, it would intersect the Rankins' dock. NAVIGATION While the dock does not seal off the bayouette, it makes access considerably more difficult, especially for Mr. Holzbauer who sails in and out in his 14 foot boat. The dock juts out from the point at the western edge of the entrance into the bayouette at such an angle that it comes within 70 feet of the eastern edge of the entrance into the bayouette. Petitioner's Exhibit No. The crew boats moored to the east of the Rankins' dock have overall lengths ranging from 65 to 85 feet and there were three of them moored at Gulfwater Marine last summer. When the crew boats are docked, the distance between the westernmost one and the most inboard mooring piling next to the Rankins' dock is 81.5 to 103 feet. Where traffic from Bayou Chico to Pensacola Bay passes under a bridge, the channel is only 80 feet wide and the crew boats sometimes hit the bridge. The greatest problem the Rankins' dock has caused the crew boats is making docking more difficult. It is not always easy to turn an 85 foot boat around in the wind. The root of the problem, according to Mr. Kingry, who owns the crew boats, is that a patch of slightly deeper water in this generally shoaled area has been cut or blocked by the Rankins' dock. Sooner or later, Mr. Kingry predicted, a crew boat will "wipe out" the Rankins' mooring pilings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation deny the application for a dredge and fill permit for a dock located and aligned as this dock is. DONE and ENTERED this 27th day of April, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1983.
Findings Of Fact On February 9, 1984, Respondent Fernandina Marine Terminals, Inc., by its agent Harbor Engineering Company, filed a joint application with the Department of the Army/Florida Department of Environmental Regulation for the rehabilitation of its existing marine facility located on the Amelia River at Fernandina Beach, Florida. The application was subsequently amended several times and eventually included the construction of a 1,000 foot dock to be constructed on the applicant's property parallel to the shoreline. (Testimony of Ray, FMT Exhibits 1-3, DER Exhibit 2) An environmental supervisor of the Department of Environmental Regulation inspected the site on March 17 and April 17, 1984, and prepared a permit application appraisal on May 21, 1984, in which he determined that the Department had permitting jurisdiction under Chapter 253, Florida Statutes, due to the fact that the Amelia River constitutes navigable waters of the state. He found that the proposed dock would extend some 42 feet farther into the river than a previously existing dock which presently consists mostly of old pilings. He further determined that from a navigational standpoint, the proposed dock should present no problem. This view was concurred in by his supervisor Dr. Marvin Collins, III, who recommended issuance of the permit. On September 6, 1984, the Department issued a Notice of Intent to issue the requested permit. Thereafter, by letter of September 14, 1984, Petitioners requested a hearing to contest the issuance of the permit. On July 9, 1984, the Department of the Army/Corps of Engineers had issued a permit to the applicant to perform the requested work. (Testimony of Deuerling, Collins, DER Exhibits 1, 3, FMT Exhibit 4) Petitioner A. B. Cook, Jr., Seafood Company is located immediately to the south of the proposed site. Shrimp boats unload at the north end of Petitioner's dock. The boats average from 60 to 70 feet in length. Petitioner is concerned that the cement pilings of the applicant's proposed pier will interfere with and prohibit the dockage of the shrimp boat due to the fact that a strong current is generated at the site where the Bells River joins the Amelia River. Petitioner therefore believes that the proposed placement of the applicant's dock would constitute a navigational hazard and that therefore it should be constructed further to the north or closer to the shoreline. (Testimony of Mrs. Cook, Petitioner's Exhibit 1) Applicant's design engineer took cognizance of the need for shrimp boats to unload at the Cook dock. At the time the project was designed he conducted surveys of the uplands to ensure that adequate land was available for the proposed facility. In his expert engineering opinion, which is accepted, the proposed site is ideal for a marine terminal since no maintenance dredging will be required and because the river curves at the site, thus making it the widest place of the river in the vicinity. The planned length of the dock is sufficient to enable the docking of two vessels at the same time. If the proposed dock were to be placed further north, it would he unable to berth two vessels. If it were placed closer to shore, it would be necessary to utilize the adjoining marsh area and-would require constant dredging. Although the dock will extend some 42 feet into the Amelia River on the southwest end, it is almost in line with the applicant's property because of the bend in the river. The dock will be located approximately 115 feet from the Cook dock. The existing dilapidated dock is only approximately 50 feet from the Cook dock, although it is more in line or more parallel to the Cook dock. (Testimony of Ray, Cavanaugh, E. Cook, DER Exhibits 1 (photos), 2, FMT Exhibits 1-3) Expert testimony from riverboat captains presented by both the applicants and petitioners is in conflict as to the extent of difficulty that will be encountered in docking shrimp boats at the Cook pier after the applicant's dock is built, and as to whether it will constitute a navigational hazard. The proposed dock will be put on pilings to avoid eddies which would be caused by a bulkhead, and will prevent change in existing currents. It is acknowledged even by the applicant's experts that a problem would exist with a falling tide and a west wind, and also in conditions of fog. However, the president of Johnson Petroleum Company which operates what is known as the "Gulf" dock located 100 feet south of the Cook dock, is familiar with the tide in the area and testified that the tide is used to spring vessels in and out of the docking area. In light of all the evidence presented, it is found that although the alignment of applicant's proposed pier will to some degree make it more difficult for boats to dock at the Cook pier, it nevertheless constitutes an appropriate use of the applicant's property and sufficient evidence has been presented to show that it will not constitute a navigational hazard or a serious impediment to navigation. (Testimony of Ray, Thompson, Ferguson, Mrs. Cook, E. Cook, Little, Johnson, Cavanaugh)
The Issue The issues for determination are whether the dock modification approved by the Department of Environmental Protection (DEP), Permit No. 41-01935093-001, adversely affects the public health, safety, or welfare or property of others and navigation. § 373.414(1)(a) 1. and 3., Fla. Stat.
Findings Of Fact The Parties The Bridge Tender Inn (Inn) is a restaurant and a Green Bay Packer bar located at 135 Bridge Street, Bradenton, Florida. Dr. Fred Bartizal is a medical doctor and the president of the Bridge Tender Inn, Inc. and the owner of the Inn. Petitioners are adjacent landowners who object to the proposed permit issued to Brown. The general public uses the Inn’s two existing docks. (The southernmost dock is adjacent to the Brown dock that is the subject of this proceeding.) Petitioners are in the process of obtaining a submerged land lease (from DEP) for the southern dock. Petitioners are substantially affected persons. DEP has the statutory authority to issue Environmental Resource Permits (ERP) for the construction of docks such as the modification proposed by Brown. Respondent, Harry K. Brown (Brown), owns the property at Section 4, Township 35 South, Range 16 East, Manatee County Florida.1 The property is located in and on Anna Maria Sound off of Bay Drive South, between Third and Fourth Streets South, in Bradenton Beach, Florida. Brown owns the property upland to the proposed dock extension. See Endnote 1. The existing dock, as proposed for modification, is located in Sarasota Bay, a Class II Outstanding Florida Water. See Fla. Admin. Code R. 62-302.400(12)(b)41. The Gulf of Mexico is west of Anna Maria Sound and Sarasota Bay. Brown’s Original Application for Permit Authorization to Construct a Dock In 1994, Brown filed an application with the Army Corps of Engineers (Corps) for a permit “to perform work in and affecting navigable waters of the United States.” On December 19, 1994, the Corps authorized Brown “to construct a T-shaped dock with four boat slips (one covered) in Anna Maria Sound” at the above-described property, in accordance with the “drawings and conditions which are incorporated in, and made a part of, the permit.” There are two drawings attached to the Corps permit. Joint Exhibit 4. The first shows the proposed Brown T-shaped dock with four identified boat slips, two on the south and two on the north sides of the portion of the dock running perpendicular to the shore. The approach to the “T” portion of the proposed dock extended 120 feet waterward (to the east.) The described “T” end of the dock measured 10’x60’. The proposed covered slip was adjacent to the northern portion of the “T,” with a boat slip adjacent to the west. (There are also two mooring pilings shown on the north side that indicate the boundaries of the covered and uncovered boat slips.) Joint Exhibit 4. This drawing also shows part of the existing and adjacent boat dock to the north of the Brown dock that runs perpendicular to the shoreline and has a T-shape at the end, running in a north and south direction. The drawing indicates that the southeastern portion of the dock to the north is “20’” from the mooring piling that forms the western boundary for the covered boat slip. Based on the “20’” designation, it appears that the second mooring piling to the west is also shown approximately 20 feet from the southeastern portion of the other boat dock. (Part of the explanation portion of this drawing was not copied.) Another, hand-drawn drawing (identified as “Exhibit 1 D,” dated April 25, 1995, prepared by Florida Permitting, Inc., and stating “REVISED APPLICATION”) shows the location of the two docks. The distance between the southeastern corner of the northern boat dock (the Bartizal dock) and the eastern mooring piling (on the north side of the Brown dock and the western boundary for the covered boat slip (slip 1)) is shown as approximately “40’.” There is no measurement shown for the distance between the southeastern corner of the Bartizal boat dock and the western mooring piling for slip 2 on the north side of the Brown dock. The distance appears to be less than 40 feet but more than 35 feet from the southeast corner of the Bartizal “T” shaped dock. On September 14, 1994, Brown also filed an application with DEP to construct a dock with four slips. (Fred Bartizal and Barbara Lohn are listed as adjacent property owners.) The Brown project was “revised to ensure adequate water depths and minimal impacts, and to maintain reasonable access to both the proposed dock and the existing dock to the north” as reflected in three drawings (Sheets A-C-dated April 25, 1995, and prepared by Florida Permitting, Inc.) that are a part of the application. Joint Exhibit 5. (Sheet C is the same as “Exhibit 1 D,” described in Finding of Fact 7. See also DEP Exhibit 7, Sheet A.) The three sheets are similar and provide the same locations for the proposed Brown and built Bartizal docks, including the “40’” measurement. Also, as revised, the approach to the Brown dock “T” is shown to be 130 feet long and the “T-end” of the dock is reduced by 12 feet, for a total length of 48 feet, and the width reduced from 10 to 8 feet, or 48’x 8’. On August 8, 1995, DEP issued Permit No. 412576623 authorizing the construction of a four slip private docking facility consisting of 904 square feet, with a conservation easement granted to DEP. Brown was required to submit “as- built” drawings to DEP within 30 days of completion of the authorized work. “Record drawings shall include the controlling elevations of all permitted structures, including final elevations as shown in the permit drawing(s)” in the “Plan View” “Sheet A,” which shows the “40’” measurement. Based on the weight of the evidence, “Sheet A” depicts the 1995 DEP approved location of the Brown dock. See DEP Exhibit 7, stamped approved by DEP, August 8, 1995, and Joint Exhibit 5, Sheet A. 2 It appears that the original Brown dock, as revised and approved by DEP Permit No. 412576623 in 1995, was actually constructed such that there is 33.4 feet between the northwestern corner of the Brown “T” portion facing north, and the southern portion of the adjacent Bartizal dock, rather than approximately 43 feet. Compare Joint Exhibits 1, 20, and 23 and Petitioners’ Exhibit J with Joint Exhibit 5, Sheet A and DEP Exhibit 7, which are the same document. See Finding of Fact 24. The mooring piling on the west side of slip 1, as depicted on DEP Exhibit 7, was constructed approximately 27 to 30 feet from the southeastern corner of the Bartizal dock (not approximately 40 feet as shown on DEP Exhibit 7) and the second mooring piling to the west was approximately 25 to 28 feet from the southeastern corner of the Bartizal dock. These are rough approximations. The ultimate finding is that the two western mooring pilings on the north side of the Brown dock and the main walkway of the Brown dock were originally constructed closer to the Bartizal dock than authorized by DEP in 1995.3 The 2002 Application Requesting Approval for Modification of the Existing Dock On or about January 3, 2002, Sherri Neff, Environmental Specialist with Florida Permitting, Inc., and Melvin Rector, president of Florida Permitting, Inc., on behalf of Brown, filed an application with DEP requesting approval of an Environmental Resource Permit for a modification of the dock previously authorized pursuant to Permit No. 412576623. Bartizal and Gregory Ellis Watkins are listed as adjoining property owners. The dock modification requested the replacement and extension of an existing structure to accommodate the dockage of 11 boats. DEP Exhibit 1. The “Project Narrative” included with this application stated in part: The egress to the proposed recreational pier currently falls along the 187' shoreline located along Bay Drive South. Access to the structure is provided by an easement from the City of Bradenton Beach. If permitted, the egress associated with the modified structure will remain at the current length of 121' beyond the jurisdiction line. The northern extension of the existing T-shaped structure, currently measured at 9.9' by 21.5', will be eliminated, and the southern extension will be reduced in width to six foot with a 28' length. In addition, an L-shaped extension is proposed to extend beyond the existing pier linearly approximately 27' into Sarasota Bay while maintaining four-foot width. A 43' by two-foot perpendicular arm would extend north at the terminus of this structure. Eleven mooring slips of specified size (Table l) are proposed in areas of suitable water depth around the structure. The modified pier would encompass an estimated 846 square feet, a reduction of 58 square feet, in relation to the originally permitted 904 square foot structure (the existing structure measures approximately 965 square feet). The application included, among other documents, a plan view of the dock modification and a cross section; a summary of structures over wetlands and other surface waters; an aerial of the area; a photograph of the existing Brown T-shaped dock and the two mooring pilings and part of the Bartizal dock to the north, including the two mooring pilings on the south side of the Bartizal dock, see also DEP Exhibit 8 and Joint Exhibit 20; water depth data; and a document showing the proposed structure and the location of the local channel. See also DEP Exhibits 2 and 4. In part, Brown granted DEP a perpetual conservation easement for 0.12 (submerged) acres as shown on an attached survey which is a rectangular area south of the Brown dock, running parallel to the shoreline and Bay Drive South. See Joint Exhibit 3, diagram identified as P 16 and DEP Exhibit 6. This diagram also shows what purports to be the pre-existing Brown T-shaped dock, the portion on the south side that is to be removed, and the location of the proposed addition, with the main portion of the dock extending east of the existing “T” and to the north. The location of the 11 boat slips is shown with the mooring pilings. Bartizal’s dock is not shown on this diagram, although it is shown on an aerial of the area dated March 1, 2002, DEP Exhibit 3. DEP employee George Molinaro reviewed the Brown modification and recommended approval. He no longer works for DEP and did not testify. On June 2, 2002, DEP issued Environmental Resource Permit, DEP Project No.: 41-01935093-001 for the construction of a 846 square foot multi-slip docking facility that would accommodate the mooring of 11 vessels. The approved dock configuration was: “a 4 ft. x 121 ft. access walkway (484 sq. ft.), a 28 ft. x 6 ft. southern extension (168 sq. ft.), a 4 ft. x 27 ft. extension (108 sq. ft.) and the 2 ft. x 43 ft. northern finger pier (86 sq. ft.).” The Challenge to the Modification An Amended Petition was filed on behalf of Petitioners. See Finding of Fact 1. The southern Bartizal dock extends out from the upland property, and is north of the Brown dock. The Bartizal dock is a four-foot wide dock that extends east into the water approximately 95 feet. There is a “T” extension at the easterly portion of the dock that extends to the north and south. There are two mooring piles that are west of the southern portion of the “T” extension. See Joint Exhibits 1 and 23; DEP Exhibit 8; and Petitioners’ Exhibit J. Boaters have moored their boats at the southern Bartizal dock, which has two southern slips for purposes of docking. In this manner, these patrons can access the Inn. Bartizal contends that boaters will be reluctant to use these slips because they are too close to the Brown mooring pilings as built. Prior to the completion of the Brown modification requested in 2002, i.e., when the Brown dock had a “T” portion, depending on the tidal currents, Bartizal and others would travel south, hugging the eastern portion of the Brown “T” following an unmarked portion of the waterway. In this manner, he and other boaters could access the inter-coastal waterway leading to the Gulf of Mexico. See Joint Exhibit 2. Now, Bartizal contends that he and an uncertain number of others are unable to travel in this manner because of the eastward extension of the Brown dock and mooring pilings and the depth of the water in this location. Id. Resolution of the Controversy One issue to be resolved is the distance between the Bartizal dock and the westerly mooring pilings north of the Brown dock and whether the placement of the Brown mooring pilings (and boats using these slips) interferes with and is potentially hazardous to boats that enter and exit from the southern portion of the Bartizal dock and boats moored at the Brown dock. See Endnote 3. The other issue to be resolved is whether the modification and extension of the Brown dock adversely affects navigation. There is no “as built” survey of the originally permitted and constructed Brown dock. However, there is a “sketch”4 drawn by Jeffrey L. Hostetler, P.S.M. (Joint Exhibit 1) and an “as built” survey by Leo Mills, P.S.M. dated October 16, 2003, (Joint Exhibit 23),5 which indicate that the distance from the southern portion of the Bartizal dock to the northwestern corner of the old “T” portion of the Brown dock was 33.4 feet. See also Joint Exhibit 13 and Petitioners’ Exhibit J. Based on all of the available information of record, it appears that the western-most mooring piling of the previously constructed Brown dock was approximately 25 to 28 feet from the southern portion of the Bartizal “T” dock. The two originally constructed mooring pilings to the north of the Brown dock were constructed closer to the Bartizal dock than originally permitted in 1995. See Finding of Fact 11. Based on a later, February 16, 2004, “as-built” survey by Leo Mills, Jr., P.S.M., Petitioners’ Exhibit J, it appears that the two western-most mooring piles that extend northerly from the now-constructed Brown dock are 26.6 feet (west side of slip 3 (DEP Exhibit 6)) and 27.1 feet (west side of slip 4, id.) from the southeastern corner of the Bartizal “T” dock, which appears to be in close proximity to the two mooring pilings previously constructed. See also Findings of Fact 11 and 24. But, as noted herein, they are not located 40 feet from the Bartizal dock. See DEP Exhibit 7. The water between the Bartizal dock and the Brown dock is very shallow. Bartizal stated that he could probably wade out to his southern dock at mean low tide. (Bartizal owns another dock to the north that also provides boat slips for access to the Inn.) Bartizal testified that the previous configuration of the mooring pilings on the north side of the Brown dock allowed easier ingress to and egress from the south side of his dock. However, Bartizal further stated that the two western mooring pilings that now exist on the north side of the Brown dock have a greater impact on ingress and egress than the prior pilings. Bartizal believes that the two western-most mooring pilings are not in the same location as previously constructed, although he is not sure. The two as-built Brown slips (3 and 4) measure 21 feet in length to the north and nine feet in width. According to the document (Joint Exhibit 3, P 16 and DEP Exhibit 6) that is stamped approved by DEP, slip 3 was approved to measure 18’x 8’ and slip 4 was approved to measure 21’x 8’, which means that the slip 3 western mooring pile is off by three feet. Also, the actual width of all of the northern slips (slips three through seven) is greater than what was approved. Compare Joint Exhibit 3, P 16 and DEP Exhibit 6 with Joint Exhibit 13 and Petitioners’ Exhibit J. (DEP Exhibit 6 shows the DEP-approved distances between the pilings next to the Brown dock. It appears that the distance between the out pilings is the same.) The two Bartizal slips facing the Brown dock are 22.4 feet in length by 12 feet. The southeastern corner of the Bartizal “T” dock is 51.6 feet from the northwestern corner of the Brown extended and constructed “L” shaped finger-dock. The two western-most Brown mooring pilings concern Bartizal. See Petitioners’ Exhibit J. There are two videotapes of record that show boats entering, docking, and exiting from the slips at the Bartizal dock, on the south side facing the Brown dock. There are also photographs of the Brown-Bartizal docks. Boat captains, navigating the area in and around the Brown-Bartizal docks, described their adventures in docking their boats. For the purpose of a video, Captain Claire operated a 21.6-foot Wellcraft center console sport fishing boat with a 2.5-foot draft and an 8-foot wide beam and an outboard motor. During the docking procedure at the Brown/Bartizal docks, at times, Captain Claire trimmed his motor to avoid contacting the bottom with the propeller and lower portion of the engine. Coming from the north, he pulled the boat in between the Brown and Bartizal docks, backing the boat into the Bartizal boat slip, which is closest to the Brown western-most mooring piling. According to Captain Claire, he “had very little problem backing into that slip” which is 12 feet wide and 22.4 feet deep. If he had a choice, Captain Claire would not dock a 21-foot boat in this area. Smaller vessels with shallow drafts are more suitable for this location given the tidal influences and the shallow water depth. Captain Claire was able to dock his boat at the same Bartizal boat slip by going forward into the slip. Captain Claire stated the distance of 26.6 feet between the Brown western-most mooring piling and the southeast portion of the Bartizal dock was “[v]ery typical.” (The two western-most Brown boat slips were empty when Captain Claire docked his boat, although there was a boat in the third slip that extended past the mooring piling which did not impact his ability to dock his boat in the Bartizal slip.) Captain Claire also stated he would not proceed south of the Brown dock in a large vessel unless the tide “was extremely high.” Darrell Konecy holds a U.S. Coast Guard license for an uninspected passenger vessel. He operates a parasailing operation and keeps his boat moored off of Bartizal’s northern dock. His boat is 28 feet in length and roughly a 9.5-foot beam and a 3.5-foot draw, at the “lowest part of the scag.” For the video, he had difficulty maneuvering his boat into Bartizal’s boat slips and between the Bartizal and Brown pilings. With difficulty, he was successful when he backed in. The two western-most Brown dock slips were not occupied at this time. Prior to the Brown extension, leaving the Bartizal dock area to the north, Captain Konecy would travel to the east of the Brown dock mooring pilings, then south out to Longboat Pass. Now, he states that he cannot travel east of the new pilings because the water is too shallow. Captain Konecy does not navigate his boat south of the Brown dock during low tide. Mike Greig holds a U.S. Coast Guard, “six pack license.” He has been boating in the waters around the Inn for approximately 20 years. He runs a 24-foot Robin, center console boat. He had difficulty docking his boat at the Bartizal dock in light of the Brown dock and mooring pilings. Prior to the modification, he did not use the south side of Bartizal’s dock. Prior to the construction of the modified Brown dock, Captain Greig was able to pass “pretty close” to the east of the Brown dock and travel south. He stated that there is a southern unmarked channel that runs from Longboat Pass up past the Brown dock. He agreed that an unmarked channel such as this is highly dependent on the tides and that the area would not be accessible to some boats at mean-low tide if the water were a very low spring tide. (He said most boats in the area are “small runabouts” which can get through the area.) He agreed that he could navigate his boat east of the existing Brown dock mooring pilings and through 4.5 feet of water as depicted on DEP Exhibit 4. He did not believe a boat that draws more than 3.5 feet could skirt east of the Brown pilings. Captain Greig also agreed that a boat with a 3.5-foot draw would have difficulty in waters as shallow as Sarasota Bay outside of the marked channel. Based on the weight of the evidence, including but not limited to consideration of the tidal variations in and around the docks, the varying sizes of the boats that may enter and exit from the Bartizal/Brown docks, the size of the slips for both docks, and the varying skill of the boat captains, the two as-built western-most mooring pilings on the north side of the Brown dock (slips 3 and 4, see DEP Exhibit 6) are potentially hazardous to incoming boats attempting to dock at the Bartizal dock on the south side and potentially hazardous to boats docked in slips three and four of the Brown dock. These mooring pilings should be removed. See Endnote 3. The next issue is whether the extension of the Brown dock to the east, including the “L” shaped extension to the north and the mooring pilings to the east, adversely affects navigation. The local channel begins just south of the Brown dock and travels in a north, northeast direction. DEP Exhibits 2 and 4; Joint Exhibits 7 and 15. Most of Bartizal’s customers utilize the northern channel to access his docks and Inn. The water depths south of the Brown dock are shallower than north of the Brown dock. The weight of the evidence indicates that there is no defined channel that extends any further than approximately 20 feet south of the Brown dock. Bartizal and others have traveled east and close to the old Brown “T” dock and then south of the Brown dock prior to the construction of the “L” extension. (The largest boat used by Bartizal to travel to the south of the Brown dock prior to the extension was 28 feet.) In this manner, they were able to access Longboat Pass via a shorter route. Boaters from the south could access the Inn without going around and entering the Bartizal docks from the north. Depending on the size of the boat and draft and the tide, it would not have been prudent to proceed south of the Brown dock without having first-hand knowledge of the water depths even prior to the extension. With the construction of the eastern extension of the Brown dock, when the tide makes passage possible, the depth of the water is sufficient east of the new Brown dock mooring pilings, i.e., east of the new northern “L” shaped finger-dock, to permit passage to the south, depending on the size of the boat and draft. Boaters to the south of the Brown dock can still proceed in a southeasterly direction through the Sound and out through Longboat Pass, subject to the caveat noted above. Joint Exhibit 2. Larger boats leaving the Bartizal docks can proceed north, east, and then south to access Longboat Pass. Joint Exhibit 2. While it may be inconvenient to proceed in this fashion, the eastward extension of the Brown pilings and the “L” shaped finger dock do not adversely affect navigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order adopting this Recommended Order and ordering Respondents, Harry Brown and David Teitelbaum, to remove the two western-most mooring pilings on the north side of their dock which border slips three and four. See DEP Exhibit 6 and Petitioners’ Exhibit J. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2004.
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
Findings Of Fact On October 25, 1990, Respondent Eckert applied to Respondent DER for a permit seeking authorization to construct a 280-foot single-family recreational dock at 5766 Red Cedar Street in Pensacola, Escambia County, Florida. The dock would extend waterward from that address and lot into Russell Bayou in Escambia County, Florida, a class III water of the State. When objections were filed to the original application for the 280-foot dock, Respondent Eckert amended his permit application and now requests a permit to build a 265-foot dock, meaning that the dock would extend 265 feet waterward from the mean high water line and, therefore, the boundary of the Respondent/applicant's property. The Petitioners are all adjacent or nearby land owners who object to the project, pursuant to Section 403.918(2), Florida Statutes (Supp. 1990), asserting that the project is contrary to the public interest in terms of recreational values or navigation. Russell Cove is a relatively-shallow body of water enclosed on three sides, with access to open water on its western end. Its depth fluctuates somewhat. It is tidally influenced, including lunar tides, which cause shallower-than-normal low water. The bottom of the cove is sandy with areas of rolling contours and shifting sandbars. The deepest points in the vicinity of the proposed dock vary between four and five and one-half feet. A 300-foot dock exists on the outward or westward end of Russell Cove. The channel widens to such an extent by the time it reaches the vicinity of that dock, however, that a 300-foot dock poses no navigational problem to boats using the interior of the cove. The applicant contends that the Petitioners who live eastward and "up the cove" from him have plenty of room to navigate past his proposed dock because, as his chart indicates, an apparently wide channel of slightly deeper water traverses the cove, waterward of all the docks in the cove, including that which he proposes to construct, with sufficient width beyond the end of his proposed dock to allow any boats which typically use the cove to navigate by it safely. The Petitioners who live on the interior of the cove, eastward of his proposed dock, and who would have to navigate by it, contend, however, that the safest route for them to navigate is immediately in front of or intersecting the tip of the location of the proposed dock. Ms. Bass testified for Petitioner Wittig. Her boat is equipped with a depth finder, and over the years of navigating in and out of the cove, she has learned that the supposedly wide channel referenced by the applicant is not actually a uniform wide, deep channel. Rather, there are sandbars occurring at various intervals, which sometimes shift in location, which point into the channel from the more southerly part of it, thus constricting it so that the safest passage is really a much narrower route closer to the ends of the docks and the proposed dock jutting into the channel. The safest passage is a slender route directly intersecting the tip of the location of the proposed dock. Ms. Bass established that there is already a narrow margin of maneuverability in the cove due to the intermittently shallow water, and, in stormy or foggy weather, the extra length of the dock might be unsafe. Petitioner Ericson has a non- motorized sailboat which must tack back and forth to enter or leave the cove when sailing into the wind. Thus, he needs a wide area to navigate in or out of the cove under certain prevailing wind conditions. Although DER's expert witness, Mr. Harp, supported the relative depth measurements established by the applicant (adjusted for seasonal tidal variations), he conceded that he had not measured an east/west line in the sandbar area described by Ms. Bass on the southerly side of the channel and jutting into the channel. Rather, he measured a north/south line and an east/west line in the route which Ms. Bass indicated she uses close to the docks and the proposed dock but not an east/west line in the sandbar area. He further conceded that the bottom was uneven or rolling in some areas. The applicant desires the extra dock length, compared to the 210-foot length of the Jones and Johnson piers on either side of him, so that he will be able to cast into slightly deeper water for fishing purposes. However, the depth prevailing at the 210-foot mark waterward from the shoreline is four feet, and the depth at the end of the proposed dock would only be approximately two inches deeper, 55 feet waterward of the other docks. Even out at the 300-foot waterward mark from shoreline, the water would be less than six inches deeper than it is at the 210-foot mark. Consequently, it was not shown how the applicant would gain any particular fishing advantage, in terms of deeper water, by locating the end of his dock some 55 feet waterward of the adjacent docks. Mr. Harp of DER visited the site to determine the water depths referenced above and to determine whether the dock would comply with Chapter 403, Florida Statutes, and the various pertinent rules concerning water quality contained in Chapter 17, Florida Administrative Code. Mr. Harp made a biological appraisal of the site to determine the location and density of seagrass beds and to determine whether the project would adversely affect water quality in Russell Bayou. Seagrasses exist at the site only between approximately 130 and 150 feet waterward of the mean high water mark. The remaining bottom substrate waterward of that point to, including, and beyond the end of the proposed dock is simply bare sand. The dock is narrow enough not to damage seagrasses by shading. Based upon Mr. Harp's uncontroverted expert testimony, it is found that the project will not result in a violation of class III water quality standards and, indeed, no Petitioner disputes that fact. Except indirectly, through navigational impact, the proposed dock does not pose a significant adverse affect on public health, safety, welfare or the property of others. It was not shown that the dock would adversely affect the conservation of fish or wildlife and, indeed, those elements of the "public interest criteria" are undisputed. The proposed dock is considered permanent in nature and will have no significant historical or archeological resource impact. It will not cause a significant adverse effect on fishing values aside from the incidental effect its navigational impact might have on those values. The proposed dock will have some impact on navigation. As shown by Respondent's Exhibit 3, the dock will extend approximately 55 feet more waterward than the existing 210-foot Johnson pier. Although a channel width of four times a boat's length is an adequate margin of safety for an average boat sailed in a competent manner, the fact that the proposed dock would extend 55 feet beyond the extent of the adjacent Johnson dock and the fact, established by Ms. Bass, that there are intermittent shallow sandbar areas which further narrow the channel from the southerly margin of it, reveal that the safe navigational channel is much narrower at the location of the end of the proposed dock, than in other nearby areas. The proposed dock would intersect this narrow "safe channel" at its most constricted point or "pinched area". For this reason, the proposed dock with its length constitutes an impediment to navigation to both the power boat and sailboat navigation described by the Petitioners' witnesses. The pier existing at the westward opening of the cove, although it is 300 feet in length, does not impose an impediment to navigation because the channel is much wider at that point than at the constricted point where the applicant's proposed 265-foot dock would intersect it. The dock would also pose some detrimental effect on the recreational values of the project site to the Petitioners in terms of their passive recreational interest in an unobstructed view. Further, the fact that the dock would infringe on a long-accepted course of travel for boats, which is located some 50 feet or so beyond the end of the existing docks would cause both a navigational and recreational adverse impact in terms of the "public interest criteria" of Section 403.918(2), Florida Statutes. No other adverse impacts would be occasioned by installation of the dock, however, and these adverse impacts can be alleviated if the dock permit were conditioned upon an alteration so that the proposed dock does not extend more than 210 feet waterward of the mean high water mark. The proposed dock will not cause any significant, cumulative or secondary adverse impacts.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by DER granting the permit sought by Respondent Eckert on the condition that the dock proposed to be constructed, and for which the permit is sought, is restricted to a length of no more than 210 feet waterward of the mean high water mark at the Respondent/applicant's property, including that portion of the dock represented by the terminal platform. DONE AND ENTERED this 2nd day of October, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-1181 Petitioner Richard J. and Judith A. Wittig's Proposed Findings of Facts 1-17. Accepted. Petitioner Robert E. and Suzanne E. Stoyer's Proposed Findings of Fact 1-7. Accepted. Rejected as speculative and not supported by preponderant evidence. Accepted. Respondent DER's Proposed Findings of Fact 1-12. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Accepted. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as not supported by preponderant evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted but not itself materially dispositive. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by preponderant evidence. Accepted. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard Coates, Esq. Pat Comer, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven E. Quinnell, Esq. JAMES L. CHASE, P.A. 101 East Government Street Pensacola, FL 32501 Robert E. and Suzanne E. Stoyer 5768 Red Cedar Street Pensacola, FL 32507 S.P. and P.A. Gallup 5660 Innerarity Circle Pensacola, FL 32507 E. P. Ericson 5652 Innerarity Circle Pensacola, FL 32507-8300 Philip E. Johnson 5794 Red Cedar Street Pensacola, FL 32507 Richard J. and Judith A. Wittig 11903 Autumnwood Lane Ft. Washington, MD 20744 Robert Eckert, Jr. 4817 Ravine Court Mobile, AL 36608
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue in this case is whether Petitioner is liable for retirement contributions on compensation paid Thaddeus Kmiecik in his capacity as city dockmaster.
Findings Of Fact The City of Moore Haven is located west of Lake Okeechobee alongside a waterway that connects Stuart on the east coast with Ft. Myers on the west coast. Petitioner maintains docks that boaters may use overnight, provided they pay a docking fee. A dockmaster supervises the dock and collects the docking fee from boaters. Petitioner's first dockmaster served without compensation. Whenever he became ill or went out of town, he asked Petitioner to hire someone to replace him. Pursuant to Ordinance No. 156, which went into effect in 1982, Petitioner hired replacements for the first dockmaster. Ordinance No. 156 provides that specified docking fees shall be paid by all boats docking at the city docks between the hours of 6:00 pm and 8:00 am or at other times, if the boat remains docked over three hours. However, the ordinance allows the dockmaster to enter into special contracts with commercial users, subject to the approval of City Commission. Ordinance No. 156 states that the City Commission shall appoint one or more persons as dockmaster, who shall "check all boats at the City dock both evening and morning of each day." The ordinance requires the dockmaster to record all relevant information about the boat in a log. The ordinance states that the dockmaster is "responsible seven days a week for the collection of dockage fees, giv[ing] a receipt from a numbered book, and giv[ing] copies of all receipts to the City Clerk each working day." The dockmaster must also tell the City Clerk if the docks need repairs or maintenance. The dockmaster is also required to assume at least certain responsibilities of the City Manager if the position is vacant. The health of the original dockmaster deteriorated and it became necessary to hire someone else to collect the fees. By agreement between the original dockmaster and the person doing the collections, the dockmaster allowed the collector to retain a percentage of the docking fees collected. The remainder evidently was remitted to Petitioner. When the original dockmaster died, Petitioner hired Thaddeus Kmiecik as the new dockmaster. The agreement between Petitioner and Mr. Kmiecik requires that he answer directly to the City Commission. He is to ensure that the docking fees are collected and all money taken directly to City Hall. Boaters needing reservations call Mr. Kmiecik at home. Mr. Kmiecik is responsible for his own expenses, but he earns a commission, payable monthly, of 20 percent of the collected docking fees. From 1986 through 1993, Petitioner has filed IRS Forms 1099, showing that Mr. Kmiecik has received the following "nonemployee compensation": 1986--$1936.52; 1987-- $2324.83; 1988 1992--$3457.50; and 1993--$2621.08. The arrangement between Petitioner and Mr. Kmiecik is fairly loose. He has never received any training, except how to complete the receipt book, which is provided by Petitioner. He has never received any orders as to how to perform his job, except that he is to ensure that the docks are checked nightly for boats and that all docking fees are promptly remitted to Petitioner. Mr. Kmiecik does not check the docks in the morning, and the City Commission has never insisted that he do so, even though the ordinance so requires. Mr. Kmiecik has attended only one City Commission meeting and has never reported anything to the City Commission. He can hire anyone whom he chooses to help him or perform the services when he is out of town or otherwise unavailable. He may supplement his income from the docks by performing other services, such as taking boaters to the airport, and he retains all compensation for such additional services. Although not required to do so, Mr. Kmiecik sometimes wears a city uniform when he appears at the docks. But this is the uniform for his fulltime job at Petitioner's water plant. Other persons checking the boats at night do not have a uniform. Petitioner is a participating local agency in the State-Administered Retirement System. Petitioner makes retirement contributions on Mr. Kmiecik's pay for his work at the water plant in recognition of the fact that this position is a regularly established position under the State-Administered Retirement System. However, Petitioner has always treated Mr. Kmiecik as an independent contractor for his work as dockmaster and has thus made no retirement contributions for his dockmaster compensation. The record is silent as to when Mr. Kmiecik first became employed with Petitioner in the water plant and whether he has been continuously so employed. On June 3, 1993, Petitioner answered a questionnaire acknowledging that Mr. Kmiecik worked at the city water plant also. Based on the record, June 3, 1993, is the earliest date on which Mr. Kmiecik worked at the city water plant. By letter dated January 21, 1994, Respondent informed Petitioner that Mr. Kmiecik was an employee when performing dockmaster services and demanded retroactive retirement contributions from the unspecified date of his employment in that position. By letter dated January 25, 1994, Petitioner supplied additional information and requested further review of this decision. By letter dated March 7, 1994, Respondent advised Petitioner that Respondent had determined that Mr. Kmiecik was performing the services of dockmaster in an employer-employee relationship, rather than an independent contractor relationship. The letter adds that Mr. Kmiecik is filling a "regularly established position" as an operator of the water plant and is "performing additional duties" as the dockmaster. Petitioner requested a formal hearing on the issue. Based on the relevant law, Mr. Kmiecik is an independent contractor with respect to his dockmaster services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter a final order requiring the City of Moore Haven to pay retirement contributions with respect to the compensation paid Mr. Kmiecik for services as a dockmaster, retroactive to June 3, 1993. ENTERED on July 21, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 21, 1994. APPENDIX Rulings on Respondent's Proposed Findings 1: adopted or adopted in substance. 2-3: rejected as subordinate. 4-10: adopted or adopted in substance. 11: adopted or adopted in substance, but only to the minimal extent of the use of the receipt books. 12-18: adopted or adopted in substance. COPIES FURNISHED Steven A. Ramunni Watkins & Ramunni, P.A. P.O. Box 250 LaBelle, FL 33935 Jodi B. Jennings Assistant Division Attorney Division of Retirement Cedars Executive Center, Bldg C 2639 North Monroe St. Tallahassee, FL 32399-1560 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 A. J. McMullian, III, Director Division of Retirement Department of Management Services Cedars Executive Center, Bldg. C 2639 N. Monroe St. Tallahassee, FL 32399-1560
