The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 11th day of January, 1983.
The Issue Whether Petitioner, the Charles J. Harris Trust, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to undertake development of certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that part of such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan?
Findings Of Fact The Property. The Applicant, Charles J. Harris Trust, is the owner of real property located in Clay County, Florida. The Applicant's property (hereinafter referred to as the "Property") is more fully described in Exhibit "A" of the documentation offered in support of the Applicant's application. The Property consists of approximately 29 acres located on Lake Geneva. The Property was purchased by Charles J. Harris and Bonnie Lee Harris, husband and wife, on January 14, 1970. On May 4, 1972, the Property was transferred by the Harris' to the Charles J. Harris Trust. The beneficiaries of the Applicant are the three adult children of the Harris'. One of those children, Becky Harris, is profoundly retarded and requires constant care. While room and board are provided for Becky, the Harris provide funds for other needs. Development of the Property; Government Action Relied Upon. On January 14, 1970, the Harris' entered into an contract to purchase the Property. See Exhibit B of the documentation in support of the Applicant's application for the specific terms of the purchase agreement. Prior to entering into the purchase contract, Winfred Crawford, a registered real estate broker, wrote a letter dated January 12, 1970, on behalf of the Harris' to George A. Gnann of the Zoning Board for Clay County, Florida. Ms. Crawford informed Mr. Gnann of the following: The property is being purchased with the thought of subdividing and the buyer has requested that we obtain for him the Clay County requirements, as to lot sizes, road sizes and etc., also please advise the zoning now on this property and what the requirements would be to change the zoning necessary to meet the County Requirements. All information that would be informative will be appreciated. By letter of January 14, 1970, Ms. Crawford wrote another letter to Mr. Gnann memorializing information provided by Mr. Gnann verbally in response to Ms. Crawford's letter of January 12, 1970. A copy of this letter was provided to the Harris' on January 14, 1970, prior to their purchase of the Property. In part, Ms. Crawford wrote the following: I understood the requirements and procedure as follows: The Clay County required lot size- 15,000 square feet, no lot to be less than 70 feet in width. The set back line from any street would be 25 feet, and set back from side lot lines 10 feet. . . . Proposed Plat would be submitted to you for your approval and signature. (This would be for approval of lot sizes and set back lines). Proposed Plat then would be submitted Louis McKee, Clay County Engineer, Orange Park, Florida, for his approval of width and location of streets. Proposed Plat would require his signature. Proposed Plat then would be submitted to Mr. Harry Riggs, County Health Department, Green Cove Springs, Florida, for his approval for sewerage disposal. Proposed Plat would require his signature. Proposed Plat would then be submitted for the approval and acceptance of the County Commissioners, requiring the Chairmans [sic] signature of acceptance before the Plat could be recorded. Based upon the foregoing, Clay County represented to the Harris' how the Property could be developed according to zoning and Clay County laws governing development of property in existence in 1970. Clay County also informed the Harris' of the steps that they needed to follow in order to plat the Property according to Clay County law in 1970. Detrimental Reliance. In reliance upon Clay County's representations, the Harris' purchased the Property. The Harris' paid $35,000.00 for the Property. The Harris' also paid interest of $29,380.00 to finance the purchase price for the Property. On July 18, 1972, the Clay County Zoning Commission gave notice that it would hold a public hearing on Thursday, August 3, 1972, to consider rezoning certain properties in Clay County. Among other things, the Clay County Zoning Commission gave notice that it planned to consider rezoning the Property from Agricultural, "A", to Single-Family Residential, "RA". The RA zoning category changed the minimum residential lot size allowed for the Property from 15,000 square feet to 20,000 square feet. Prior to the Harris' purchase of the Property, the shoreline of the Property had been modified. A natural cove along the shoreline of the Property was closed in with a spoil dike and island. After purchasing the Property the Harris' began seeking approval from the Florida Department of Environmental Regulation (now the Department of Environmental Protection)(hereinafter referred to as the "Department") of a permit to restore the shoreline to its original condition. In connection with the restoration of the Property's shoreline, costs were incurred by the Applicant for the services of engineers and surveyors. A "Study of Proposed Reconnection of Pond to Lake Geneva" was prepared by Barry A. Benedict, Ph.D., and plans for the restoration of the shoreline were prepared. On March 26, 1982, the Department approved a permit for the restoration of the shoreline. The evidence failed to prove that Clay County made any representations to the Applicant as a result of the process of obtaining the permit. The restoration of the shoreline of the Property was completed by the Applicant in 1982. The costs of the restoration project incurred by the Applicant was approximately $11,940.00. During the early 1980's the Applicant incurred costs of $22,319.00 to clear a dirt road from the western boundary of the Property to most of the lots along the shoreline, including four lots subsequently sold by the Applicant. The four lots sold by the Applicant were sold Between approximately 1983 and 1984. The lots were sold to unrelated third parties. Non-exclusive easements of ingress and egress were also conveyed to the owners of the sold lots. All of the sold lots are located along the shoreline of the Property. One of the sold lots, Lot 1-L (1.163 acres), is located along the northern boundary of the Property and has ingress/egress along the northern boundary of the Property. Another of the sold lots, Lot F (0.823 acres), requires ingress/egress along the cleared road that was cut through unsold lots. The other two sold lots, Lots C (0.681 acres) and D (0.731 acres), are contiguous and require ingress/egress along the cleared road that was cut through unsold lots. Lots C and D are separated by Lot E, a 0.691-acre unsold portion of the Property. In 1985, after selling the four lots, the Applicant had a Boundary Survey of the Property prepared by Joseph G. Knapp, Registered Land Surveyor. The Boundary Survey was completed June 22, 1985. The Boundary Survey identifies how the Applicant intends to subdivide the Property into 34 lots. Three of the lots are just over one acre. The rest of the lots are between 0.6 acres and just under one acre. The Boundary Survey prepared for the Applicant could have served as a recorded plat but was not recorded with Clay County by the Applicant. Steps 3 through 6 outlined in Ms. Crawford's letter of January 14, 1970, setting out the representations from Clay County concerning the laws governing development of the Property in 1970, and in particular, recording a plat of the Property, were not followed by the Applicant. At the time of the formal hearing of this case, approximately 23 acres of the Property remain unsold. Rights that will be Destroyed. Clay County adopted a comprehensive growth management plan in January 1992. Pursuant to the plan, the land use for he Property was designated as "Agriculture." Land designated with a land use of "Agriculture" pursuant to the plan may be developed at a density of one residential unit per 20 acres. The land use designation was modified in 1994 to "RA 2" but not in any material respect. Property designated "Agriculture" or "RA 2" may also be used for agricultural purposes as long as they are "bona fide" agricultural purposes, or "good faith commercial agricultural use of the land." Prior to the adoption of the Clay County comprehensive plan, the Applicants could have sold the remaining 23.7 acres of the Property as the remaining 30 unsold lots designated in the Boundary Survey prepared for the Applicant. As a result of the land use designation for the Property adopted in Clay County's comprehensive plan, the remaining 23.7 acres of the Property with easements for ingress and egress to sold lots may be developed with one residential unit only. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue At issue in this proceeding is whether petitioners' application for consent to construct a private dock within John Pennekamp Coral Reef State Park should be approved.
Findings Of Fact The parties Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for the people of the state. Respondents are the Department of Natural Resources (DNR) which, pertinent to this case, includes the Division of State Lands and the Division of Recreation and Parks; and, the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) which is comprised of the Governor and Cabinet, who are also the agency head of the Department of Natural Resources. Sections 20.25, Florida Statutes. The Division of State Lands performs all staff duties for the Board of Trustees related to acquisition, administration and disposition of state lands, and the Division of Recreation and Parks is charged with the duty to supervise, administer, regulate, control, preserve and maintain all public parks held by the state. Sections 253.01 and 258.004, Florida Statutes. The application On January 29, 1988, petitioners submitted a joint application to the Department of Environmental Regulation (DER) and the Department of the Army, Corps of Engineers (Corps), to construct a private single-family dock on the sovereign submerged lands contiguous to their property. Thereafter, on February 10, 1988, a copy of the application was likewise filed with the Division of State Lands, presumably by DER in conformance with Section 253.77, Florida Statutes, since the project involved construction on state lands. According to the application, the proposed dock would measure 70 feet in length and 4 feet in width, and include one boat slip measuring 30 feet in length and 9 feet in width. Petitioner Ian Koblick proposed to dock his personal boat at such facility, and to use such boat for, inter alia, commuting to and from work. Construction of the dock does not, however, bear any relationship to petitioner's ability to access their property, since their property is accessible by road. On February 3, 1988, DER notified petitioners that their application was exempt from its dredge and fill permitting requirements, pursuant to Section 403.813(2)(b), Florida Statutes, and on April 27, 1988, the Corps notified petitioners that their project was authorized by a Department of the Army general permit, issued under the authority of Section 10 of the Rivers and Harbors Act of March 3, 1899 (33 U.S.C. 403), which allowed the construction of private single-family piers in navigable waters of the United States under certain conditions. In the interim, by letter of February 22, 1988, DNR's Division of State Lands advised petitioners that their project would require approval pursuant to Chapter 253, Florida Statutes (presumably Section 253.77, Florida Statutes), and that since the project was located within John Pennekamp Coral Reef State Park, it might be affected by comments requested of DNR's Division of Recreation and Parks. Following a delay occasioned by DNR's study of dock and fill encroachments within John Pennekamp Coral Reef State Park, discussed infra, the Division of State Lands, by letter of March 9, 1989, advised petitioners that: . . . The fundamental problem with your dock application lies in the fact that the proposed structure falls within the boundaries of John Pennekamp Coral Reef State Park. Pursuant to Florida Administrative Code 16D-2.011(3), construction activities of any kind are prohibited within Pennekamp Park unless initiated by the Division of Recreation and Parks . . . I understand that . . . our Florida Keys Field Office is presently preparing a package for submittal to Tallahassee so that a final response of your request can be made . . . . Thereafter, following the Board of Trustees' resolution of the encroachment issue, discussed infra, the Division of State Lands, by letter of September 26, 1991, denied petitioners' application for a consent for use of state lands, based on Rule 16D-2.011(3), Florida Administrative Code. However, by letter of November 13, 1991, the Division of State Lands advised petitioners that: The Division of State Lands has reconsidered its denial of consent for use of the state lands associated with Mr. Koblick's residential dock, as stated to Mr. Koblick in my letter of September 26, 1991, and has determined that there is no basis in its rules to deny his application for a single- family dock. Therefore I rescind that letter. However, Mr. Koblick's dock is located in John Pennekamp Coral Reef State Park and construction activities in the park are a violation of the Florida Administrative Code Rules of the Division of Recreation and Parks. The Board of Trustees of the Internal Improvement Trust Fund has dedicated the responsibility of the John Pennekamp State Park to the Division of Recreation and Parks of the Department of Natural Resources. Based upon our assessment, I strongly recommend that you contact Fran Mainella, Director, Division of Recreation and Parks, at the address above, to determine if Mr. Koblick's application is consistent with its policies and codes prior to beginning any construction activities. In response to such correspondence, petitioners, by letter of December 17, 1991, requested authorization from the Division of Recreation and Parks to construct their dock within the park. By letter of December 27, 1991, the Division of Recreation and Parks, based on Rule 16D-2.011(3), Florida Administrative Code, denied petitioner's application. Here, by complaint against respondents, DNR and the Board of Trustees, petitioners contest the propriety of the Division of State Land's failure to issue a consent of use permit pursuant to Rule 18-21.005(1)(a), Florida Administrative Code, and the refusal of the Division of Recreation and Parks to approve their application for authorization to construct their dock within the boundaries of John Pennekamp Coral Reef State Park. Petitioners contend, as set forth in their proposed recommended order, that they should prevail in the instant proceeding based on the following "theories": 1/ The "riparian rights" provision in Dedication 22309A, must be construed as of September 21, 1967 (the date of the dedication), to include the riparian right to build a dock in Pennekamp Park. When the "riparian rights" provision was adopted it was intended to afford land owners protection from Board of Parks and Historic Memorials Rules which prohibited dredging, filling and other construction activities in Pennekamp Park. The "riparian rights" provision was also intended to assure that adjacent landowners would not be treated in a different manner merely because of their proximity to Pennekamp Park. Having obtained an exemption from the Department of Environmental Regulation ("DER") on February 3, 1988, Petitioners were entitled to a consent of use "by rule" in accordance with Rule 18-21.005(1)(a), Fla. Admin. Code. Since Respondents authorized and permitted numerous docks, seawalls, and dredge and fill activities in Pennekamp Park for over 20 years, their decision to apply Rule 16D-2.011(3), Fla. Admin. Code, to Petitioners' single family dock is arbitrary and unreasonable. The April 12, 1990, Board of Trustees "Policy" was ineffective to modify the riparian rights provision in Dedication 22309A, or to repeal the consent of use granted on February 3, 1988, by Rule 18- 21.005 Fla. Admin. Code. Because the April 12, 1990, Board of Trustees' Policy prohibits "future authorizations" it does not apply to Petitioners' application which was deemed authorized as of February 3, 1988. The John Pennekamp Coral Reef State Park On December 3, 1959, the Board of Trustees dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal governments regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Board of Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to DNR's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of the park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Board of Trustees and the Division of Recreation and Parks, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by DNR's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rules at issue Section 253.77, Florida Statutes, provides: (1) No person may commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under this chapter, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement or other form of consent authorizing the proposed use. Consistent with such provision, the Board of Trustees have adopted Rule 18-21.005, Florida Administrative Code, which establishes the form of approval required for various activities. Pertinent to this case, subsection (1)(a) of the rule provides that where, as here, the proposed activity is exempt from DER permitting requirements under Section 403.813(2)(b), Florida Statutes [providing for exemption of private docks of 500 square feet or less of over- water surface area under certain circumstances], it "is hereby exempted from any requirement to make application for consent of use, and such consent is herein granted by the board " Notwithstanding the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, which grants, "by rule," consent of use where the project is exempt from DER permitting requirements, the Division of Recreation and Parks' Rule 16D-2.011(3), Florida Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to other rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 2/ The purpose of the Division of Recreation and Parks' rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. 3/ Construction activities in the park Following receipt of petitioners' application in February 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative Code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of DNR, directed that DNR prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed DNR to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, DNR's study identified 40 private docking facilities within the park boundaries. Of those structures, DNR's report revealed that seven were constructed prior to the park's expansion in 1967, 22 had no apparent authorization, six had received permits from either DER, Monroe County or the Corps but not DNR, and five had been "authorized" by DNR. The study further identified four commercial docking facilities within the park, only one of which was authorized, it having been registered as a grandfathered structure, and 12 unauthorized fills. 4/ Regarding the five private docks that had been "authorized," the proof demonstrates that the first dock was approved by the Board of Trustees on September 13, 1974, prior to the effective date of Rule 16D-2.001(3), Florida Administrative Code, and that the Division of Recreation and Parks, although asked to comment, voiced no objection to its construction. Such authorization was apparently granted under the "Trustees' Exemption Rule," the provisions of which do not appear of record. The remaining four docks were "approved" for a consent of use in 1980, 1982, 1986, and 1987, respectively, by field staff of DNR's Division of State Lands, under the exemption afforded by Rule 18- 21.005(1)(a), Florida Administrative Code, but no approval was ever requested of, or granted by, the Division of Recreation and Parks. Regarding the "approval" garnered from the Division of State Lands for the four private docks, it is worthy of note, in so far as it may have borne on the Trustees' policy choice of April 12, 1990, discussed infra, that under the provisions of Rule 18-21.005(1)(a), Florida Administrative Code, consent of use is automatic and no express or separate authorization is required. Notwithstanding, the Division of State Lands has, when requested to do so by applicants who apparently desire written confirmation of such exemption, provided such "approval." Based on DNR's study and the public meetings, DNR recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: Private Docks: . . . (1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code, as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorizations will be issued for the construction of new private docks in state park waters. Commercial docks: . . . (1) that docks currently authorized within state park waters by the Department of Natural Resources or Board of Trustees will retain authorized status until such time that current authorization expires; (2) that all other docks be considered as unauthorized structures and removed from state park waters within 90 days of receiving legal notification from the Department of Natural Resources; and (3) that no expansion of authorized commercial docks or construction of new commercial docking facilities be authorized. Fills: . . . (1) that unauthorized fills have been evaluated on a case-by-case basis using environmental impact to the marine environment as the primary evaluation criteria; (2) fills found to be detrimental to the marine environment may require partial or complete removal; and (3) no new fills be authorized. Such policy was an apparent effort by the Board of Trustees to fairly resolve the status of structures existent before the park's boundaries were expanded in 1967, as well as subsequent encroachments, some of which, until 1988, were approved by the Division of State Lands under the provisions of Rule 18-21.005(1)(a) in apparent ignorance of, or refusal to accord deference to, the Division of Recreation and Parks Rule 16D-2.011(3). The Board of Trustees' policy has not been formally adopted as a rule, but does reflect an interpretation of Chapter 18-21, Florida Administrative Code, that would preclude the approval of a consent of use where the proposed activity would violate the rules of the Division of Recreation and Parks. See also Kreiter v. Chiles, 595 So.2d 111 (Fla. 3d DCA 1992), rev. denied 601 So.2d 552 (Fla. 1992), discussed infra, where the Board of Trustees denied a request for a consent of use under similar circumstances. Riparian rights and the "subject to" clause Here, petitioners contend that the riparian rights provision contained in the "subject to" clause of Dedication 22309A should be construed to include the right of riparian upland owners, such as petitioners, to construct a dock on adjacent sovereign submerged lands. For the reasons that follow, petitioners' contention is rejected. As heretofore noted, Dedication 22309A, dated September 21, 1967, expanded the boundaries of John Pennekamp Coral Reef State Park by dedicating certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interests which may exist in or affect the above described lands. The "subject to" clause was inserted into the aforesaid dedication by the Board of Trustees based on its staff's recommendation that the dedication be authorized: . . . but . . . contain the provision that the statutory riparian rights and the right to purchase the riparian bottom lands by an affected upland owner not be impaired in any manner. (Emphasis added). Considering the staff recommendation, which was the apparent impetus for the "subject to" clause, and the language of the "subject to" clause, it is concluded that the "subject to" clause is clear and unambiguous and evidences no intention to accord upland owners any riparian right beyond that existent under law. Such rights were defined at the time, as they are now under Section 253.141(1), Florida Statutes, as follows: Riparian rights are those incident to land bordering upon navigable waters. They are rights of ingress, egress, boating, bathing, and fishing and such others as may be or have been defined by law . . . . As will be addressed in the conclusions of law, riparian rights did not at the time, and do not now, include the unqualified right to construct a dock on sovereign submerged lands, and petitioners' contention that the "subject to" clause should be so interpreted is rejected as contrary to the clear and unambiguous language of such clause. In reaching the foregoing conclusion, the proof offered by petitioners regarding the Board of Trustees' sale of state owned submerged lands in the park to private persons subsequent to 1967, the Board of Trustees' authorization for the construction of an access or navigational channel in the park by a private person subsequent to 1967, and the authorizations granted for private docks within the park, as heretofore discussed, has not been overlooked. However, for the reasons that follow, such proof failed to persuasively demonstrate, as contended by petitioners, that the "subject to" clause was intended to afford upland owners an unqualified right to construct a private dock on sovereign submerged lands or to restrict the Division of Recreation and Parks, or its predecessor, from restricting such construction activities in the park. Foremost among the reasons petitioners' proof was unpersuasive is the conclusion reached that the "subject to" clause is clear and unambiguous. Under such circumstances, resort to extrinsic evidence to interpret the clause is unnecessary, and the proof offered by petitioners is irrelevant. Moreover, as to the proof itself, it is woefully lacking in sufficient specificity to persuasively demonstrate that the clause should be interpreted differently. With respect to the proof dealing with the Board of Trustees' sale of some state-owned submerged lands within the park to private persons subsequent to 1967, there was no proof regarding the date of any such sales, to whom it was sold, or the circumstances surrounding the sale, but simply generalized proof that such sales had occurred. The same lack of specificity exists with regard to the proof offered with regard to the Board of Trustees' authorization for the construction of a navigation channel within the park subsequent to 1967. Under such circumstances, the proof offered fails to demonstrate any persuasive nexus between the Board of Trustees' action and the "subject to" clause. Rather, the Board of Trustees' action may as easily be ascribed to other legal authority upon which the board was empowered to alienate state lands, as the "subject to clause," and any conclusion to the contrary would be base speculation. See e.g., Sections 253.12 et. seq., Florida Statutes (1967). Finally, the proof offered regarding the authorizations granted for the construction of private docks within park boundaries, discussed supra, and the opinions expressed within DNR during such period that common and statutory law regarding riparian rights contemplated the construction of such docks pursuant to the riparian owner's right of ingress and egress, does not compel a different conclusion. Rather, such proof evidences a misapprehension of the law, as opposed to a reflection of any significance to be accorded the language used in the "subject to" clause beyond its patent import.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents render a final order which denies petitioners' request for consent of use, as well as their request for authorization to construct a private dock within the boundaries of John Pennekamp Coral Reef State Park. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of February 1993. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February 1993.
The Issue The issue is whether Petitioners' Motions for Attorney's Fees should be granted, and if so, in what amount.
Findings Of Fact Based upon the stipulation of counsel, the papers filed herein, and the underlying record made a part of this proceeding, the following findings of fact are determined: Background In this attorney's fees dispute, Petitioners, Anderson Columbia Company, Inc. (Anderson Columbia) (Case No. 00-0754F), Panhandle Land & Timber Company, Inc. (Panhandle Land) (Case No. 00-0755F), Support Terminals Operating Partnership, L.P. (Support Terminals) (Case No. 00-0756F), Commodores Point Terminal Corporation (Commodores Point) (Case No. 00-0757F), and Olan B. Ward, Sr., Martha P. Ward, Anthony Taranto, Antoinette Taranto, J.V. Gander Distributors, Inc., J.V. Gander, Jr., and Three Rivers Properties, Inc. (the Ward group) (Case No. 00-0828F), have requested the award of attorney's fees and costs incurred in successfully challenging proposed Rule 18-21.019(1), Florida Administrative Code, a rule administered by Respondent, Board of Trustees of the Internal Improvement Trust Fund (Board). In general terms, the proposed rule essentially authorized the Board, through the use of a qualified disclaimer, to reclaim sovereign submerged lands which had previously been conveyed to the upland owners by virtue of their having filled in, bulkheaded, or permanently improved the submerged lands. The underlying actions were assigned Case Nos. 98- 1764RP, 98-1866RP, 98-2045RP, and 98-2046RP, and an evidentiary hearing on the rule challenge was held on May 21, 1998. That proceeding culminated in the issuance of a Final Order in Support Terminals Operating Partnership, L.P. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 21 F.A.L.R. 3844 (Div. Admin. Hrngs., Aug. 8, 1998), which determined that, except for one challenged provision, the proposed rule was valid. Thereafter, in the case of Anderson Columbia Company, Inc. et al. v. Board of Trustees of the Internal Improvement Trust Fund, 748 So. 2d 1061 (Fla. 1st DCA 1999), the court reversed the order below and determined that the rule was an invalid exercise of delegated legislative authority. Petitioners then filed their motions. Fees and Costs There are eleven Petitioners seeking reimbursement of fees and costs. In its motion, Anderson Columbia seeks reimbursement of attorney's fees "up to the $15,000 cap allowed by statute" while Panhandle Land seeks identical relief. In their similarly worded motions, Support Terminals and Commodores Point each seek fees "up to the $15,000 cap allowed by statute." Finally, the Ward group collectively seeks $9,117.00 in attorney's fees and $139.77 in costs. In the Joint Stipulations of Fact filed by the parties, the Board has agreed that the rate and hours for all Petitioners "were reasonable." As to all Petitioners except the Ward group, the Board has further agreed that each of their costs to challenge the rule exceeded $15,000.00. It has also agreed that even though they were not contained in the motions, requests for costs by Support Terminals, Commodores Point, Anderson Columbia, and Panhandle Land in the amounts of $1,143.22, $1,143.22, $1,933.07, and $1,933.07, respectively, were "reasonable." Finally, the Board has agreed that the request for costs by the Ward group in the amount of $139.77 is "reasonable." Despite the stipulation, and in the event it does not prevail on the merits of these cases, the Board contends that the four claimants in Case Nos. 00-754F, 00-755F, 00-0756F, and 00- 757F should be reimbursed only on a per case basis, and not per client, or $7,500.00 apiece, on the theory that they were sharing counsel, and the discrepancy between the amount of fees requested by the Ward group (made up of seven Petitioners) and the higher fees requested by the other Petitioners "is difficult to understand and justify." If this theory is accepted, it would mean that Support Terminals and Commodores Point would share a single $15,000.00 fee, while Anderson Columbia and Panhandle Land would do the same. Support Terminals and Commodores Point were unrelated clients who happened to choose the same counsel; they were not a "shared venture." Each brought a different perspective to the case since Commodores Point had already received a disclaimer with no reversionary interest while Support Terminals received one with a reversionary interest on June 26, 1997. The latter event ultimately precipitated this matter and led to the proposed rulemaking. Likewise, in the case of Anderson Columbia and Panhandle Land, one was a landowner while the other was a tenant, and they also happened to choose the same attorney to represent them. For the sake of convenience and economy, the underlying cases were consolidated and the matters joined for hearing. Substantial Justification From a factual basis, the Board contends several factors should be taken into account in determining whether it was substantially justified in proposing the challenged rule. First, the Board points out that its members are mainly lay persons, and they relied in good faith on the legal advice of the Board's staff and remarks made by the Attorney General during the course of the meeting at which the Board issued a disclaimer to Support Terminals. Therefore, the Board argues that it should be insulated from liability since it was relying on the advice of counsel. If this were true, though, an agency that relied on legal advice could never be held responsible for a decision which lacked substantial justification. The Board also relies upon the fact that it has a constitutional duty to protect the sovereign lands held in the public trust for the use and benefit of the public. Because lands may be disclaimed under the Butler Act only if they fully meet the requirements of the grant, and these questions involve complex policy considerations, the Board argues that the complexity and difficulty of this task militate against an award of fees. While its mission is indisputably important, however, the Board is no different than other state agencies who likewise are charged with the protection of the health, safety, and welfare of the citizens. The Board further relies on the fact that the rule was never intended to affect title to Petitioners' lands, and all Petitioners had legal recourse to file a suit to quiet title in circuit court. As the appellate court noted, however, the effect of the rule was direct and immediate, and through the issuance of a disclaimer with the objectionable language, it created a reversionary interest in the State and made private lands subject to public use. During the final hearing in the underlying proceedings, the then Director of State Lands vigorously supported the proposed rule as being in the best interests of the State and consistent with the "inalienable" Public Trust. However, he was unaware of any Florida court decision which supported the Board's views, and he could cite no specific statutory guidance for the Board's actions. The Director also acknowledged that the statutory authority for the rule (Section 253.129, Florida Statutes) simply directed the Board to issue disclaimers, and it made no mention of the right of the Board to reclaim submerged lands through the issuance of a qualified disclaimer. In short, while the Board could articulate a theory for its rule, it had very little, if any, basis in Florida statutory or common law or judicial precedent to support that theory. Although Board counsel has ably argued that the law on the Butler Act was archaic, confusing, and conflicting in many respects, the rule challenge case ultimately turned on a single issue, that is, whether the Riparian Rights Act of 1856 and the Butler Act of 1921 granted to upland or riparian owners fee simple title to the adjacent submerged lands which were filled in, bulkheaded, or permanently improved. In other words, the ultimate issue was whether the Board's position was "inconsistent with the . . . the concept of fee simple title." Anderson Columbia at 1066. On this issue, the court held that the State could not through rulemaking "seek to reserve ownership interests by issuing less than an unqualified or unconditional disclaimer to riparian lands which meet the statutory requirements." Id. at 1067. Thus, with no supporting case law or precedent to support its view on that point, there was little room for confusion or doubt on the part of the Board. E. Special Circumstances In terms of special circumstances that would make an award of fees unjust, the Board first contends that the proposed rule was never intended to "harm anyone," and that none of Petitioners were actually harmed. But the substantial interests of each Petitioner were clearly affected by the proposed rules, and the appellate court concluded that the rule would result in an unconstitutional forfeiture of property. The Board also contends that because it must make proprietary decisions affecting the public trust, it should be given wide latitude in rulemaking. It further points out that the Board must engage in the difficult task of balancing the interests of the public with private rights, and that when it infringes on the private rights of others, as it did here, it should not be penalized for erring on the side of the public. As previously noted, however, all state agencies have worthy governmental responsibilities, but this in itself does not insulate an agency from sanctions. As an additional special circumstance, the Board points out that many of the provisions within the proposed rule were not challenged and were therefore valid. In this case, several subsections were admittedly unchallenged, but the offending provisions which form the crux of the rule were invalidated. Finally, the Board reasons that any moneys paid in fees and costs will diminish the amount of money to be spent on public lands. It is unlikely, however, that any state agency has funds set aside for the payment of attorney's fees and costs under Section 120.595(2), Florida Statutes (1999).
The Issue Whether the subject site is within Petitioner's permitting jurisdiction and whether an earthen dam constructed at the subject site required a permit? Whether Respondent should be required to remove the earthen dam and/or be required to pay Petitioner's investigative costs?
Findings Of Fact Petitioner is the agency of the State of Florida that regulates dredge and fill activities conducted in wetlands within its statutory jurisdiction as set forth in Chapters 373 and 403, Florida Statutes. Respondent owns the subject property, which is located in the 200 block of Jan Drive in Section 18, Township 4 South, Range 13 West, Bay County, Florida. On July 22, 1999, Mr. Keisker met informally with Respondent at Respondent’s request and made a field visit to the subject property. Mr. Keisker told Respondent that he thought the subject property was within Petitioner’s permitting jurisdiction. Although Mr. Keisker took soil samples, surveyed the plant life of the area, and observed the hydrology of the area, his visit was not intended to be an official determination that the subject property was within Petitioner's permitting jurisdiction. There is no dispute that an earthen dam was constructed across the unnamed creek, described in findings of fact paragraph 5, in late 1999 or early January 2000. The central issue in dispute is whether the site of the earthen dam is within Petitioner’s permitting jurisdiction. Respondent asserts that the area at issue is a drainage ditch that did not naturally occur and is not within the permitting jurisdiction of Petitioner. Petitioner asserts that the area is an unnamed creek in a historical, natural wetland that is within its permitting jurisdiction. The greater weight of the credible, competent evidence established that Respondent’s property contains an unnamed creek that is located in an area of historically natural wetlands that was likely excavated in the 1970's by the local Mosquito Control District. This area of natural wetlands drains and connects into Rogers Pond and Calloway Bayou, which are Class III waters of the State of Florida. The site is within the permitting jurisdiction of Petitioner. 2/ Respondent did not receive a permit prior to the construction of the earthen dam. Construction of the earthen dam constitutes unpermitted fill activity in a wetland within Petitioner's regulatory jurisdiction. Shortly after Petitioner received a complaint in January 2000 that it had been constructed, the dam was partially breached as the result of a heavy rain event. To prevent further pollution of the unnamed creek, the remaining portion of the earthen dam should be removed by non- mechanical means. Mr. Keisker testified that he calculated Petitioner’s investigative costs based on the amount of time he expended in investigating this matter multiplied by his hourly rate of pay. In calculating his hourly rate of pay, he took his annual salary and added to that 52 percent of his annual salary for fringe benefits. He then divided that sum by 2000, which represents 50 work weeks of 40 hours per week. He used 50 weeks to calculate the hourly rate to adjust for two weeks of paid vacation. Based on his calculations, Mr. Keisker testified that Petitioner incurred costs and expenses in excess of $750.00 during its investigation of this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained herein and requiring Respondent to remove the remaining portions of the earthen dam by non-mechanical means. DONE AND ENTERED this 29th day of March, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of March, 2001.
Findings Of Fact In Spring, 1976 Menkes was employed by FAR to secure property listings for resale. At that time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. There was a total absence of evidence and, hence, a failure of proof as to the allegations of misrepresentations by Menkes. FREC introduced no evidence to show that Menkes represented that the property could be sold for several times the purchase price, that it would be advertised nationwide and in foreign countries or that the company had foreign buyers wanting to purchase United States property listed with the company. There was no evidence introduced to show that Menkes either made the representations or knew them to be false. There was no evidence introduced to show that Menkes knew that no bona fide effort would be made to sell the property listed. There was no evidence of any nature introduced by FREC to show that Menkes was dishonest or untruthful.
The Issue Whether Petitioner is entitled to a consent to use sovereign submerged lands.
Findings Of Fact MBRRC filed an application for an environmental resource permit and authorization to use sovereign submerged lands located in the Biscayne Bay Aquatic Preserve (BBAP). This application sought approval to construct two finger piers and to install twelve mooring pilings for the benefit of a private yacht club. The application was filed with the Department for review on October 20, 1995. The Petitioner’s property is located on Hibiscus Island, a man-made island within the BBAP, and is accessed by boat. The island is primarily used for residential purposes. Petitioner’s facility is the only commercial docking facility on the island. Petitioner owns approximately 140 feet along the waterfront with its property line extending 20 feet seaward of the upland property. It has an existing dock which is approximately 10 feet wide that runs the length of, and parallel to, the seawall along its waterfront. The proposed finger piers would extend waterward and perpendicular to the existing dock from its ends. This extension proposes to use approximately 16 feet into the sovereign submerged land at the ends and would also allow the installation of 12 mooring pilings between the piers. The ultimate purpose of the installation is to allow perpendicular docking. At all times material to this case the Department has considered the proposed construction to be a new facility subject to the requirements of Section 258.397(3)(a), Florida Statutes, and Rule 18-18.006(3), Florida Administrative Code. No existing structures at the site would qualify the applicant for the type of lease proposed. The Petitioner annually hosts numerous fishing and social events at its club facility. Participants typically “raft” vessels together in order to gain access to the shore. Historically this process has moored vessels parallel to the existing dock/seawall. This “rafting” would not necessarily be eliminated by the addition of the proposed finger piers. Petitioner seeks to expand the docking facility as requested in order to provide better ingress and egress to its property. It contends that fishing and boating in the BBAP will be enhanced by such improvements. Petitioner maintains its property is being treated differently than others; however, policies used by the Department in this instance are applicable to all areas of the BBAP. By letter dated February 6, 1996, the Department advised the Petitioner that staff would recommend denial of the application. That letter advised Petitioner of the “extreme hardship” test found in Rule 18-18.006(3), Florida Administrative Code as well as Section 258.397(3)(a), Florida Statutes. The letter noted that this standard was “at best very difficult to demonstrate” and advised Petitioner of the “public interest” requirement also set forth by rule and statute. “Self-imposed circumstances” as used in the applicable rule has been construed to include circumstances where the applicant seeks to improve existing boat access, to increase the number of docking slips, and to enhance the upland property. The Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) has determined that the construction of single-family docks meets the “extreme hardship” test because single-family docks are considered to be the lowest impact use available on sovereign submerged land. It is deemed appropriate to allow a qualified right of ingress and egress to the upland owner. The Petitioner’s proposal is not a public project or a public necessity. Petitioner currently has ingress and egress to its upland property. The Petitioner’s property is a nonconforming use in a residential area. The term “property owners in the area” has been construed to mean the BBAP. The proposed project is not unique to the applicant, and the burden to the applicant is shared by other property owners in the BBAP. The proposed project would provide additional access to an upland property owner who already has boat access to the waterway. Neither the project site nor the island on which it is located are unique as other properties of a similar nature are within the BBAP. In order to establish that a proposed project is “in the public interest,” applicants are required to demonstrate that the activity would improve either public recreation, water quality, fish hatcheries, or other matters of public interest. In this instance, Petitioner did not submit a written proposal to support the public interest requirement during the application process. Consequently, DEP has not assessed such proposal for its quantity or quality. Petitioner relies on its improved boating access to support a claim of enhancement to public recreation. As to water quality, fish hatcheries, or other matters of public interest, the proposed project would adversely affect seagrasses and other environmental resources by shading. Although the installation of mooring pilings would provide some environmental benefit, those benefits would not be quantifiable and would be offset by increased shading from the project. Other proposals submitted by Petitioner incidental to its Dade County permit application are insufficient in detail and scope to show the public interest requirement would be met. The proposed project is located in an area that is intermediate between the most sensitive and least sensitive sites, for the purpose of manatee protection. The proposed project would have an adverse environmental impact on manatee protection since it creates additional docking slips and additional boat traffic. The proposed project would result in environmental costs through the loss of resources and increased turbidity. The proposed project would provide no quantifiable economic benefit to the public, but would provide some economic cost in the loss of habitat and food source for fisheries. The proposed project would provide no social benefits different from those presently provided by the existing facility. The benefit of the proposed project is merely enhancement of the Petitioner’s current use at a cost of lost fisheries, increased danger to manatees, and increased turbidity.
Recommendation Based on the foregoing, RECOMMENDED: That the Department of Environmental Protection enter a final order denying Petitioner’s request for authorization to lease sovereign submerged land. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of March 1997. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March 1997. COPIES FURNISHED: Stephen E. Tunstall, Esquire Stephen E. Tunstall, P.A. 2701 Southwest LeJeune Road Suite 410 Coral Gables, Florida 33134 Jeffrey Brown, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether the Respondent is guilty on six counts of charging an advance fee for the listing of time-share estates for sale, in violation of Section 721.20(4), Florida Statutes.
Findings Of Fact Respondent is a corporation organized under the laws of Arkansas and was authorized by the Florida Secretary of State to transact business in the State of Florida from November 1991 through December 1997. Respondent's main office is now located in Mountain Home, Arkansas. Respondent's credit card terminals are in Arkansas. Respondent has an escrow and operating account in Mountain Home, Arkansas. Respondent hired Jack McClure to open and operate its Florida office. Jack McClure held a Florida real estate broker's license. National Resort Mart conducted business from its Florida office in Kissimmee, Florida, until McClure's death in December 1997. Respondent opened and maintained escrow and operating accounts in Florida from 1992 through 1997 for its Florida business. The Florida office was limited to the activities of time-share real estate sales. The Respondent did not list time- shares, nor collect any advance fees for listing time-shares at its Kissimmee, Florida, branch office. Global Title Company of Naples, Florida, conducts the closings for Respondent for the majority of their Florida time- share sales. Respondent advertised its Florida office in its direct mail brochure, sent to Florida time-share owners, with the statement: "Our Orlando office is situated only seven miles from Disney World." Ms. Valnecia Williams of Madison, Florida, owns a time- share unit at Cypress Point Resorts in Central Florida. Williams received a mailed "brochure" from Respondent's home office which advised her that Respondent was in the business of buying and selling time-shares. Based on the Respondent's direct mail flyer, Williams called the Kissimmee, Florida, telephone number to find out information related to her listing. Apparently, the call was automatically switched to the home office. She received some initial information. Several weeks later she called the Respondent's Arkansas office and talked to a different salesperson. Williams agreed to list her time-share, Cypress Pointe Resort, Unit 5206, Week 37, with Respondent on March 5, 1997, at an asking price of $12,9000 in an open listing for a period of a year. Consideration was in the form of a seven percent of gross sale of the unit, or a $750 minimum commission, to be paid to Respondent at the closing of the sale. Respondent charged an advance fee of $439 from Ms. Williams of Madison, Florida, at the time she listed her Florida time-share period at Cypress Point Resort for sale with Respondent. Williams authorized Scott Fisher, Respondent's salesperson in Arkansas to charge the refundable advertising and marketing fee of $439 to Williams' USAA Federal Savings Bank charge card. Williams was not pleased with the service provided by Respondent and, on or about July 28, 1997, demanded a refund from the Respondent. Sometime within the next two months Respondent complied with the request and refunded the fee by crediting Williams' charge card with the same amount. Kim Collins of Faith, North Carolina, owns a time-share unit at Westgate Lakes, Orlando, Florida. Collins received brochures from Respondent's home office seeking a listing for her time-share unit in Florida, approximately one year later. Collins called Respondent at an "800" number which was automatically forwarded to Respondent's main office in Arkansas. Eventually, Collins decided to use Respondent's services and borrowed the money from her mother to pay the advance fee and sign the listing contract. Respondent collected an advance fee from Mr. and Mrs. Richard Collins of Faith, North Carolina, of $439 at the time they listed their Florida time-share period at Westgate Lakes, Orlando, for sale with Respondent, by mail and check to the Respondent's main office in Arkansas. Collins' time-share has been listed for sale with Respondent since July 1, 1996. Dan Coffey of Jacksonville, Florida, owns a time-share unit at Orange Lake in Central Florida. Coffey received a brochure from Respondent's home office and called for more information. Coffey agreed to list his unit for sale with Respondent on October 14, 1996, at a negotiable price of $12,900. Respondent collected an advance fee from Mr. and Mrs. Daniel Coffey of Jacksonville, Florida, of $439 at the time they listed their Florida time-share period of Orange Lake Resort, Orlando, Florida, for sale with Respondent. In like manner, Respondent collected an advance fee from Mr. and Mrs. Rick Rogers of Maumee, Ohio, at the time they listed their Florida time-share period with Respondent. Respondent also collected an advance fee from Mr. and Mrs. Donald Gordon of Pensacola, Florida, at the time they listed their Florida time-share period with Respondent. Respondent collected an advance fee from Mr. and Mrs. William Budai of Duquesne, Pennsylvania, of $539 at the time they listed their Florida time-share period at Westgate Villas, Kissimmee, Florida, for sale with Respondent. The contract signed by each complainant was titled "Listing Agreement." The Listing Agreement between the time- share owner of the Florida unit and Respondent was for the listing of their time-share for sale for a percent of gross sale of the unit to be paid at the closing, with an advance fee payable immediately. All transactions between the owners and Respondent were made through the Respondent's home office in Arkansas. No advance fee was collected within the boundaries of the State of Florida. Complainants Collins and Coffey did not receive refunds of the advance fees they paid to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, enter a final order that: Finds Respondent guilty of six violations of Section 721.20(4), Florida Statutes. Respondent pay a penalty of $10,000 per violation for each of the six violations, to be paid within thirty (30) days of the entry of the final order. That Respondent refund $439 each to Kim Collins and Daniel Coffey, to be paid within thirty (30) days of the entry of the final order. That Respondent cease and desist from collecting advance fees for the listing of time-share periods for Florida residents and/or Florida time-share units. DONE AND ENTERED this 20th day of May, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 20th day of May, 1999. COPIES FURNISHED: Mary Denise O'Brien, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James H. Gillis, Esquire James H. Gillis Associates, P.A. 8424 Pamlico Street Tallahassee, Florida 32817-1514 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Philip Nowick, Director Division of Florida Land Sales, Condos, and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for disposition in this case is whether Respondent has implemented an agency statement that meets the definition of a rule, but which has not been adopted pursuant to section 120.54, Florida Statutes.
Findings Of Fact The Board of Trustees of the Internal Improvement Trust Fund (Board) is charged with the management of state lands, including sovereign submerged lands. § 253.03(1), Fla. Stat. The Department of Environmental Protection (Department) is charged with the duty to “perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to which is or will be vested in the Board of Trustees of the Internal Improvement Trust Fund.” § 253.002(1), Fla. Stat. The City of Titusville operates a municipal marina, which includes a 205-slip docking facility for mooring of commercial and recreational vessels (Marina), on sovereignty submerged lands leased from the Board. Petitioner owns a Florida-registered vessel which he keeps at the Marina pursuant to an annual mooring/dockage agreement. On June 9, 2009, the City of Titusville and the Board entered into a “fee waived” lease renewal and modification for a parcel of sovereignty submerged land in the Indian River (Lease). The Lease allows the Marina to operate “with liveaboards as defined in paragraph 26, as shown and conditioned in Attachment A, and the State of Florida Department of Environmental Protection, Consolidated Environmental Resource Permit No. 05-287409-001, dated December 31, 2008, incorporated herein and made a part of this lease by reference.” Paragraph 26 of the Lease provides that: 26. LIVEABOARDS: The term “liveaboard” is defined as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. If liveaboards are authorized by paragraph one (1) of this lease, in no event shall such “liveaboard” status exceed six (6) months within any twelve (12) month period, nor shall any such vessel constitute a legal or primary residence. On or about July 31, 2015, Petitioner and the City of Titusville entered into the annual contractual mooring/dockage agreement, paragraph 4 of which provides that: 4. LIVEABOARDS: For the purposes of this Agreement, the term “liveaboard” is defined herein as a vessel docked at the facility and inhabited by a person or persons for any five (5) consecutive days or a total of ten (10) days within a thirty (30) day period. Pursuant to requirements of the City’s Submerged Land Lease with the State of Florida, no vessel shall occupy the Marina in this “1iveaboard” status for more than six (6) months within any twelve (l2) month period, nor shall the Marina Facility constitute a legal or primary residence of the OWNER. Petitioner asserts that the alleged agency statement regarding “liveaboard” vessels “unreasonably and arbitrarily denies me the unrestricted right to stay on my vessel by limiting the number of consecutive days during which I may occupy the vessel,” and that “[t]he Board’s non-rule policy denies me the unrestricted freedom to enjoy my vessel as a second home.”
Findings Of Fact Background Petitioners, Ian Koblick and Tonya Koblick, are the owners of Lots 3 and 4, Block 9, Anglers Park, Key Largo, Monroe County, Florida, according to the plat thereof recorded in plat book 1, page 159, public records of Monroe County, Florida. Such real property is contiguous to Largo Sound, a navigable water body, and title to the submerged lands under Largo Sound is vested in the State of Florida, in trust for all the people of the state. On December 5, 1991, petitioners sought permission from respondent's Division of Recreation and Parks to construct a private single family dock on the sovereign submerged lands contiguous to their property. According to the proof, such dock would measure approximately 70' in length and 4' in width, and include one boat slip measuring 30' in length and 9' in width. Apart from such limited proof, there is no evidence of record as to the use to which such dock would be put, although it is clear that its construction has no relationship to petitioners' ability to access their property since they have access to such property by road. By letter of December 27, 1991, respondent denied petitioners' request based on Rule 16D-2.011(3), Florida Administrative Code, which provides, pertinent to protections to be accorded John Pennekamp Coral Reef State Park, as follows: (3) Construction activities. Unless specifically initiated by the Division, all construction activities of any kind are prohibited. No dredging, excavating, or filling operations are permitted in this state park; no materials of any kind may be deposited in or on the waters thereof. No structure of any kind shall be erected; no public service facility shall be constructed or extended into, upon or across this state park. By petition filed with the Division of Administrative Hearings, petitioners challenged the validity of such rule as an invalid exercise of delegated legislative authority. The gravamen of petitioners' challenge, as set forth in their proposed final order, is that "a) Rule 16D-2.011 is invalid because it contravenes Section 253.141, Fla. Stat., which recognizes riparian rights; b) the Rule is invalid because it is inconsistent with the "subject to" clause in Dedication 22309A; and c) the Rule is arbitrary and capricious because it assumes that all construction activity adversely affects the Park." The John Pennekamp Coral Reef State Park On December 3, 1959, the Trustees of the Internal Improvement Trust Fund of the State of Florida (Trustees) dedicated certain portions of the outer Continental Shelf situated seaward of a line three geographic miles from Key Largo, Monroe County, Florida, to the Florida Board of Parks and Memorials, the predecessor to respondent's Division of Recreation and Parks. Such dedication was for the express purpose of establishing the area as the Key Largo Coral Reef Preserve, now known as the John Pennekamp Coral Reef State Park, and to restrict the use of such submerged lands to park, recreational and preservation purposes. At the time of the aforesaid dedication, the State of Florida and the United States of America (United States) had been involved in litigation regarding the seaward boundaries of the State of Florida in the Gulf of Mexico and the Atlantic Ocean, and the Trustees recognized that all, or a portion, of the dedicated lands might ultimately be found not to lie within the boundary of the State of Florida. Notwithstanding, there apparently being a community of interest between the state and federal government regarding the preservation of the coral reef formation, the State of Florida dedicated whatever interest it might have in such submerged lands for park, recreational and preservation purposes. Ultimately, the United States prevailed, and the State of Florida was found to have no interest in the submerged lands lying seaward of a line three geographic miles from Key Largo. Notwithstanding, the dedication of December 3, 1959, was generally known to describe the westerly boundary of John Pennekamp Coral Reef State Park, and provided established reference points from which additional submerged lands dedicated on September 21, 1967, discussed infra, could be identified. By Dedication 22309A, dated September 21, 1967, the Trustees dedicated to the Florida Board of Parks and Historic Memorials, the predecessor to respondent's Division of Recreation and Parks, certain sovereignty lands in Monroe County, Florida, as follows: Those submerged tidal bottom lands in the Atlantic Ocean lying between the John Pennekamp Coral Reef State Park and Key Largo including the submerged land in Largo Sound and the various inlets along the easterly coast of Key Largo; as and for public State Park purposes only . . . SUBJECT, HOWEVER, to any riparian rights and interest which may exist in or affect the above described lands. Considering the dedication of December 3, 1959, which was commonly known to delineate the then western boundary of John Pennekamp Coral Reef State Park, and the dedication of September 21, 1967, the current boundaries of such state park can be located by a surveyor. Those boundaries extend from the three-mile limit offshore to the mean high water line of Key Largo, within fixed lines on the north and south, and include Largo Sound, under which the submerged lands contiguous to petitioners' property lie. Today, as a consequence of the aforesaid dedications and certain leases between the Trustees and respondent, John Pennekamp Coral Reef State Park consists of approximately 56,000 acres, of which 53,000 acres are submerged. Administered by respondent's Division of Recreation and Parks, the park currently draws approximately one million visitors a year. The rule at issue The rule at issue in these proceedings, Rule 16D Administrative Code, prohibits all construction activities in John Pennekamp Coral Reef State Park not specifically initiated by the Division of Recreation and Parks. Such rule has been effective since July 16, 1975, and is similar to rules applicable to all other state parks, which likewise prohibit construction activities not initiated by the division. 1/ The purpose of the rule is to protect and preserve the coral reef formations and other natural resources of the park, and is premised on the assumption that the cumulative impact of construction activities in the park, such as docks, seawalls, groins, boat ramps, mooring buoys and ski ramps, would have an adverse effect on the park's natural resources. At hearing, petitioners failed to offer any persuasive proof that the cumulative impact of construction in the park would not have an adverse effect on the park's natural resources, or that the ban of all construction activities in the park not specifically initiated by the Division of Recreation and Parks was not supported by reason, fact or logic. Docks in the park In or about May 1988, it became apparent that, notwithstanding the provisions of Rule 16D-2.011(3), Florida Administrative code, encroachments into John Pennekamp Coral Reef State Park existed. Consequently, the Board of Trustees, as head of the Department of Natural Resources (Department), directed the Department to prepare a comprehensive report on all filling and construction activities that had occurred in the park. Thereafter, on August 22, 1989, the Board of Trustees directed the Department to conduct public meetings with respect to a proposed policy to address the encroachments that were discovered. Pertinent to this case, the Department's study identified 40 private docking facilities within the park boundaries. Of those structures, the Department's report revealed that 7 were constructed prior to the park's creation in 1967, 22 had no apparent authorization, 6 had received permits from either the Department of Environmental Regulation, Monroe County, or the Army Corps of Engineers, and 5 had been authorized by the Department notwithstanding the provisions of Rule 16D-2.011(3). Regarding the Department's approval of such docks, the proof demonstrates that, more likely than not, such approval was secured from the Department's Division of State Lands pursuant to the provisions of Chapter 18- 21, Florida Administrative Code, and in apparent ignorance of the Division of Recreation and Parks' Rule 16D-2.011(3), which prohibited such activity. Certainly, the Division of Recreation and Parks was not aware that such approvals had been given until the Department's study, and it never authorized such construction within the park's boundaries. Based on the Department's study and the public meetings, the Division of Recreation and Parks and the Division of State Lands recommended a policy to the Board of Trustees, at their meeting of April 12, 1990, to address the encroachments that had occurred in the park. That policy, approved by the Board of Trustees, was as follows: . . .(1) that all docks in existence prior to 1967 within state park waters receive authorized structure status; (2) that all docks within state park waters legally authorized by the Department of Natural Resources or the Board of Trustees during or after 1967 receive status as authorized structures; (3) that all other private docks in existence since 1967 within state park waters that are not legally authorized by Department of Natural Resources or the Board of Trustees have been evaluated on a case-by- case basis, taking into consideration any authorization issued by state and federal environmental agencies and, using the Florida Keys Marina and Dock Siting Policies and Criteria - 18-21.0041, Florida Administrative Code as a guideline for reviewing environmental impact on marine communities, designate the structure as either authorized or require removal or modification; and (4) that no future authorization will be issued for the construction of new private docks in state park waters. Repairs to existing private docks While the rule provisions prohibiting construction activities in the park are clear and unambiguous, petitioners sought to raise some uncertainty regarding the rule by reference to the circumstances under which the docks that had been grandfathered under the Board's policy statement of April 12, 1990, could be repaired. In this regard, petitioners elicited proof from the Division of Recreation and Parks that authorization for repair of such structures would have to be reviewed on a case-by-case basis, giving due consideration to the extent or nature of the maintenance or repair, before a decision could be made. While the question of repairs to existing structures may raise some question of uncertainty to the owners of those docks, such uncertainty is not occasioned by the rule. Rather, such uncertainty is a product of the existence of docks in the park, albeit without the approval of the Division of Recreation and Parks, and the policy choice made on April 12, 1990, by the Board as to how to address those structures. Under such circumstances, it cannot be concluded that the rule, as or when enacted, is vague or otherwise objectionable.
