The Issue The issues in this case are whether the replacement of a dock by Respondent Christner in February 1993, is exempt from the requirement for a permit pursuant to Section 403.813(2)(d), Florida Statutes (1995) 1/ and Florida Administrative Code Rules 40C-4.051(11)(i) and 62-312.050(1)(i) 2/ and, if not, whether: Petitioners waived their right to request an administrative hearing pursuant to Rules 62-103.155(3)(b); Petitioner's have legal standing to challenge the agency action proposing the exemption; and the agency is estopped from reopening its prior determination.
Findings Of Fact The Department is the state agency responsible for regulating and permitting residential docks. Since February 1969, Christner has resided at 1655 Misty Dawn Lane, Merritt Island, Florida. The Christner property is adjacent to the waters of Newfound Harbor in Brevard County, Florida. Petitioners have owned property adjacent to Christner since 1990 and resided there until September 1997. Petitioners' property is located at 1665 Misty Dawn Lane. A dock existed behind the Christner property from 1972 until February 1993 (the "original dock"). After constructing the original dock, Christner sold a parcel of his land to Petitioners. After the sale, the original dock was located within 25 feet of the common boundary between the respective properties owned by Christner and Petitioners. In February 1993, Christner contracted with Mr. John Calhoun, Unique Seawall and Dock Systems, to replace the original dock. The replacement dock was completed in February 1993. The replacement dock is in the same location and of the same configuration and dimensions as the original dock. The replacement dock was constructed within the footprint of the original dock. No fill material other than piles was used to replace the original dock. Prior to October 1991, the original dock was in need of repair but was still functional. It provided access to boats moored at the dock. The original dock could still be used for fishing and mooring small boats. Between October 1991 and December 1992, the original dock was rendered non-functional. It was rendered non-functional by a discrete event. The term "discrete event" is not defined by statute or rule. A discrete event includes a storm, flood, fire, or accident. Neither the witnesses nor their records recorded a storm, flood, fire, or accident between October 1991 and December 1992. The term "discrete event" is not limited to a storm, flood, fire, or accident. It can include wind and high water. Wind and high water could have damaged the original dock without damaging newer docks in the immediate vicinity that had the benefit of better construction and were in better repair. The original dock was nearly 20 years old in October 1991 and in disrepair. The damage caused by the discrete event left several large gaps in the original dock. The damage to the original dock between October 1991 and December 1992 could not have occurred without a discrete event. Christner constructed the replacement dock in February 1993 without a permit. In September 1995, Petitioners filed a complaint with the Department. The complaint alleged that the replacement dock was constructed without a required permit. By letter dated October 4, 1995, the Department advised Christner that the replacement dock was an unauthorized single family dock. The Department stated in the letter that the original dock was non-functional in November 1992 and was repaired prior to March 1993 without proper permitting. The letter required Christner to apply for a permit. In October 1995, Christner filed an application for a Noticed General Permit and paid the application fee. After October 4, 1995, the Department determined that the dock was functional prior to its repair and exempt from permitting requirements pursuant to Section 403.813(2)(d) and Rules 40C-4.051(11)(i) and 62-312.050(1). The Department based its determination on representations by Christner and his dock builder that the original dock was repaired with planks before constructing the replacement dock. Christner and his dock builder represented that the planks spanned the gaps in the original dock so that the dock could be used to moor small boats. Christner represented that an individual could walk above the water line on the planks to the boats. On December 8, 1995, Petitioners received actual notice of the Department's determination that the replacement dock was exempt from permitting requirements because the original dock was functional prior to its replacement. An employee of the Department who investigated Petitioners' complaint notified Petitioners and Christner by telephone of the proposed exemption. The Department did not publish written notice of the proposed exemption and did not provide Petitioners with written notice of the Department's action. The Department violated Rule 62-103.155(5) by failing to provide Petitioners with written notice of their right to request an administrative hearing. In December 1995, counsel for Petitioners made several inquiries of the Department to determine how the decision to exempt the replacement dock was made and if it could be changed. Department personnel represented that the case was closed and nothing could be done to change the decision. In December 1995, counsel for Petitioners contacted the Department's office of general counsel concerning a point of entry. A Department employee represented that no review was possible. In its PRO, the Department now proposes that the replacement dock was not exempt from the requirement for a permit. The Department proposes that the original dock was not functional prior to the construction of the replacement dock and that a discrete event did not cause the original dock to be non- functional.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying Petitioner's challenge to the proposed exemption. DONE AND ENTERED this 6th day of January, 1998, in Tallahassee, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.
The Issue The issue is whether the applicants-respondents Floyd and Alice Melton have provided reasonable assurances that their proposed dock meets the requirements of Chapter 403, Florida Statutes (1989) and Chapter 17, Florida Administrative Code, for issuance of a dredge and fill permit. Only four issues of disputed fact are raised by the pleadings in these cases: (1) whether the project will adversely affect navigation as that term is used in Section 403.918(2)(a)3., Florida Statutes; (2) whether the project will adversely affect recreational values in the vicinity of the project, in the context of the public interest test of Section 403.918(2)(a)4., Florida Statutes; (3) whether an increased number of boats at the proposed dock would cause "pollution" which would violate water quality criteria promulgated by the Department, and (4) whether the pilings will harm seagrasses in the vicinity of the dock.
Findings Of Fact An 85' dock perpendicular to the shoreline of the Meltons' property at Lot 4, Block 2, Buccaneer Point Estates, Key Largo, was in existence in 1988, some portion of which was apparently constructed without the benefit of a dredge and fill permit. On October 20, 1988, Floyd Melton applied to the Department (hereinafter "DER") for an after-the-fact permit for a 48' x 20' section, as an addition to a previously existing structure. After DER received the Meltons' permit application, an agency field inspector visited the site to determine whether the Meltons' proposed project could be constructed in conformance with Chapter 403, Florida Statutes, including the "public interest" tests at Section 403.918(2), and the "Keys Rule," Rule 17-312.420, Florida Administrative Code. The project site is located in Class III, Outstanding Florida Waters. The relevant factual determinations that DER personnel had to make at the Melton site, to ascertain compliance with the Keys Rule, were (a) the water depths, and (b) the presence or absence of seagrass communities in the proposed boat mooring area. The proposed 90' dock would have terminated over seagrass community in less than 5' of water depth. DER informed the Meltons, on February 9, 19890, that the permit would be denied unless they redesigned the dock to extend a distance of 275' out from the shore (289' total length), to where a water depth of 5' existed, limited the dock to a 4' width, and elevated the access walkway 6 feet above mean high water, to prohibit mooring along it and to increase light penetration underneath the dock. The Meltons amended their permit application to so comply. There are seagrasses under the entire length of the proposed dock. There are dense seagrass communities at the terminus of the proposed dock, surrounded by less dense seagrass communities. Under the boat currently moored near the terminus of the Meltons' uncompleted dock, there is a dense seagrass bed that is not adversely affected by the presence of the boat, which is moored in 5' of water. There is a "halo" of denuded bottom extending 4-6 inches around each piling, and occasional gouges that extend beyond the halo, which features are an ordinary and expected effect of driving pilings into the sea bed. Petitioners' expert's uncontroverted testimony is that 10 pilings placed in the dense seagrass bed at the end of the proposed dock would have no effect on the viability of that seagrass bed, while 100 pilings "would definitely damage" its viability. The survey introduced by the Meltons shows six pilings where the terminal platform is to be constructed, and three more offshore pilings for mooring purposes, for a total of nine. Other existing mooring pilings shown in the survey, landward of the proposed terminal platform, are to be removed in accordance with the permit. The water depth at the end of the Meltons' existing 85' dock is between 3.0' and 3.25', which is comparable to other existing docks in the area. Fast boats, such as water-skiing boats and one-person watercraft, operating in shallow water over a seagrass bed can damage seagrasses by "prop scarring" or by stirring up sediments. At another dock in the area, where the water depth is 3.75' at the dock's terminus, there is evidence of damage to seagrass beds by such prop-scarring. The water depth at the end of Petitioner Traurig's dock is only 1.67' to 2.0', necessitating very careful boat operation to prevent damage to seagrasses. The stipulated modification to the permit allowing three mooring pilings and requiring mooring waterward of the terminal platform clarifies DER's understanding that boats would only be moored on the waterward side of the terminal platform. No more than one or two boats can reasonably be moored at the facility. That is no more than could have been moored at the previous dock; in fact, it is equivalent to the two moored at Petitioner Traurig's dock. The environmental impact of the proposed Melton dock would be far less than that of the other docks along this shoreline, primarily because it causes boats to be operated and moored in deeper water. Neither the proposed project, nor the one or two boats that can be expected to moor at the terminal platform, will have any adverse effect on Florida Bay or the seagrass communities in the immediate vicinity. The entire area of Florida Bay except for the shoreline area where the Melton and other docks in the vicinity are located is open for navigation. It is between 0.4 and 0.5 miles from the end of the proposed dock to the nearest navigation channel. The proposed dock is not a hazard to navigation in that nearest channel, the Intracoastal Waterway. It is, however, an inconvenience and can present a hazard to unwary nighttime recreational users in the waters next to the shoreline where the Melton, Clarke, and Traurig docks are located. Petitioners' witnesses' testimony focused on how the Melton dock would force them to change their usual paths while recreating in the area, or traveling to and from nearby docks. Water-skiers and "knee-towers" have had to modify the route they used to take when water-skiing or knee-towing past the Melton property, now that much of the dock is in place. Some boat operators, Petitioners' witnesses included, continue to operate their boats so close to the Melton dock that near- collisions take place. A sailor chose to forego landing his catamaran at a dock near the Melton dock because its presence would have given him "a hard time getting out." Youngsters on "hydoslides" and "wet bikes," and in small boats, have passed landward of the outermost pilings of the uncompleted Melton dock, literally going under the structure, on several occasions. One neighbor witnessed three nighttime collisions with the uncompleted Melton dock by boaters, each of which ended when the boaters extricated themselves from the pilings. Traurig's tenant next door to the Meltons, when traveling to and from her dock, complained that "you can't go straight out anymore. You have to go out and then around. You have to be cautious..." Petitioner Traurig stated that the Melton dock would "almost cause her to jump out of her unpowered sailboat and tow it into her dock," as it would limit her ability to tack in the close confines created by the new dock. Petitioner Charles Clarke, whose property is separated from the Meltons by Petitioner Traurig's property, stated that the proposed dock is "an obstacle essentially to navigation and enjoyment of that waterway as I used it...," and that he is prevented from tacking into his dock by the presence of the Meltons' dock. Buccaneer Point is full of docks. The neighboring docks are generally approximately 100' long, while the Meltons' dock that DER proposes to permit will be 289' long, with mooring pilings and a boat extending this facility between 300' and 310' offshore. Boaters will be required to avoid this dock while recreating in the area, and while travelling to and from nearby docks. The proposed dock will discourage boaters and water- skiers from traveling through the very shallow waters off the ends of the other docks in the vicinity, potentially injuring themselves and the benthic communities. The Melton dock will not cross over the riparian lines of the Melton property. The project is clearly in the public interest by preventing ongoing adverse impacts of the existing dock, allowing the recolonization of habitat in those disturbed areas, and by extending the dock to prevent the destruction of the bay bottom. This is accomplished by elevating the dock to 6' and restricting its width to 4' in order to allow better sunlight penetration below the dock. This is also accomplished by prohibiting the mooring of vessels other than seaward of the terminus platform, thereby keeping vessels in deeper water to prevent additional destruction of the seagrass beds throughout the area. During the course of the final hearing, the Meltons and DER entered into several stipulations which will promote the absence of impact to the seagrass community. They have agreed that the following conditions will be made part of any permit issued by DER: The dock structure will be modified so that it is T-shaped rather than L-shaped. The terminal platform and access walkway will be of the dimensions contained in DER's "intent to issue." The access walkway can intersect the terminal platform at any point along the platform's 40' length. There will be 3 mooring pilings placed seaward of the terminal platform. The permit will restrict the mooring of vessels to the seaward side of the terminal platform. The Meltons will remove the 3 mooring pilings located to the right of the dock and 2 of the 4 pilings located to the left of the dock. The Meltons will not use a water-based barge in less than 2' of water in connection with the dock construction or driving or removing the pilings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the Meltons' application for a dredge and fill permit, conditioned upon the stipulations and the mitigative recommendation set forth in this Recommended Order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16 day of October, 1990. LINDA H. 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 16 day of October, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 89-6051 and 89-6135 Petitioners' proposed findings of fact numbered 2, 3, 6, 7, 22d, 22g, 22j, and 22r have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed findings of fact numbered 1, 22f, 22h, 22i, and 22n- 22q have been rejected as not being supported by the weight of the evidence in this cause. Petitioners' proposed findings of fact numbered 4, 5, 19, 22a, 22c, 22e, 22i, 22k, and 22m have been rejected as being unnecessary for determination of the issues in this cause. Petitioners' proposed findings of fact numbered 8-18, 20, 21, 22b, 22s, and 22t have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The Department's proposed findings of fact numbered 1, 2, 6, 8-10, 12, 14, 15, 17, 19-23, and 26 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the evidence in this cause. The Department's proposed findings of fact numbered 4, 5, and 25 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law. The Department's proposed findings of fact numbered 7, 11, 13, 16, 18, and 24 have been rejected as being unnecessary for determination of the issues in this cause. Respondents Meltons' proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michael F. Chenoweth, Esquire 31 Garden Cove Drive Key Largo, Florida 33037 James S. Mattson, Esquire Joseph J. Vetrick, Esquire MATTSON, TOBIN & VETRICK Post Office Box 586 Key West, Florida 33037 Cecile I. Ross, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
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 Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 1.
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 concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, 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 14th day of April, 2005.
Findings Of Fact Ramchandra Jakhotia and Rashmi Jakhotia, his wife, acquired the King Cole Motel at 401 East Shore Drive, Clearwater, Florida in 1983 and have owned the property since that time. At the time of acquisition and for some time prior thereto the property included a commercial marina with 22 slips. In 1985 the City of Clearwater revised its Development Code effective October 13, 1985 and, incident thereto, effective July 7, 1988, enacted Section 114.05, Live-Aboard Vessels as Ordinance 4597, Clearwater City Code. That enactment provided, in part, that: Prohibited; exceptions: It shall be unlawful for any person to moor any live-aboard vessel at any location within or upon the navigable waters in the City for any period of time in excess of seventy-two (72) hours, except as follows: At a marina facility for which conditional use approval has been obtained, or a marina facility in existence as of October 13, 1985 for which conditional use approval would otherwise be required;... In January 1986 a survey was taken of all marinas within the City of Clearwater to determine the number of live aboard vessels coming within the purview of the revised Development Code. At this survey eight live aboard vessels were occupying berths at the King Cole Motel marina and this was the number determined to be grandfathered for which no conditional use approval would be required. In 1988 King Cole Motel applied for conditional authorization to utilize 14 additional berths for live aboard vessels. This conditional use was approved subject to the applicant installing a pump-out facility and meeting the parking requirements. Although the parking requirements for a commercial marina, i.e., 0.5 parking space per slip, is the same as the parking requirement at marinas for live aboard vessels, the latter generally place a greater demand on parking spaces than does non-live aboard vessels. To change the approved use from commercial marina without live aboards to live aboards is a change in the use and requires conditional use approval. Before conditional use approval can be granted the applicant must comply with all code requirements, such as required parking spaces, at the time of the change in use. At the time Appellant acquired the King Cole Motel the 22 commercial slips were grandfathered as an authorized use without any parking being provided. Accordingly, as a 22-slip commercial marina Appellant did not have to provide parking. When the eight slips used for live aboards were counted in 1986 they too were grandfathered in without the need for parking spaces. However, when Appellant applied in 1988 for authorization to use 14 other slips for live aboard vessels, the code required the applicant to provide seven parking spaces. To his credit Appellant obtained the use of seven parking spaces down the road from the marina but those spaces were not contiguous to Appellants' marina as required by the code. Therefore, Appellants' use of the additional slips for live aboards did not meet the parking requirement in his conditional use approval. In 1992 Appellant applied for a variance of the seven parking spaces required to allow the use of these additional slips by live aboard vessels. This hearing was held before the Development Code Adjustment Board on February 11, 1993 and it is from the denial of this variance that this appeal is taken. The Board denied the variance requested because the Appellant failed to demonstrate that the standards established by Section 45.24 Land Development Code were met. In these proceedings Appellant presented no additional evidence to support the variances requested than was submitted to the Board.
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about March 6, 1984, petitioner applied for a DER permit to construct a marina on state owned submerged land located in Punta Rassa, Lee County, Florida. The original design requested approval to build slips for 54 boats. This design was later modified to conform to suggested modifications made by DER staff. The modification reduced the size of the marina to 30 boat slips. By an Intent to Issue dated April 24, 1985, petitioner was advised that the DER intended to issue the permit with 17 special conditions. Special Condition Number 1 advised petitioner of the Florida law which states that construction on state sovereignty lands may not be commenced prior to receiving 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. In none of the 17 special conditions, nor in any other portion of the Intent to Issue, was it stated when the permit time would begin to run, or when it would expire. The expiration date of the proposed permit simply was not mentioned. The Intent to Issue did contain a standard "point of entry" notice, advising that a petition for a hearing could be filed and stating that the hearing process was designed to formulate agency action. Having no objection to the DER's Intent to Issue and the conditions thereof, the petitioner determined not to request an administrative hearing with regard to said Intent. On May 17, 1985, the DER issued to petitioner Permit Number 360836415. This permit included 15 general conditions and the same 17 special conditions that were contained in the Intent to Issue. In addition, the permit stated that it would expire on June 1, 1987. The permit was accompanied by a letter. Neither the letter, nor the permit, bore the stamp of the agency clerk or contained language advising petitioner of its right to petition for an administrative hearing or other "point of entry" language. DER never notified petitioner by any document that contained "point of entry" language that the permit time would begin running immediately and would expire on June 1, 1987. In order to obtain a sovereignty land lease from the Trustees of the Internal Improvement Trust Fund, petitioner was required to modify its proposed marina design by reducing the number of boat slips to 14. The Trustees approved the lease on or about July 29, 1986, although the Certification of Board Action attesting the Board's approval of the lease, as well as the sovereignty submerged land lease itself, was not forwarded to the petitioner until March 12, 1987. Due to the modifications required by the Trustees, the petitioner requested DER to modify its permit to reflect the reduction of the project scope. The request represented a minor modification to the permit and was granted by DER by letter dated September 30, 1986. The letter of modification does not suggest that the original expiration date of the permit had been changed. As of June 1, 1987, construction work on the proposed marina had not yet begun. The petitioner's agent relied upon a promulgated rule of the DER and assumed that the permit time would not begin to run on this project until petitioner had obtained consent to use state owned submerged land. DER's Dredge and Fill Application is encompassed in a form which is adopted by reference in Rule 17-1.203(1), Florida Administrative Code. This rule was adopted in 1982 and is still in effect today. A portion of that form, Appendix E, paragraph 3(g), on page 30, states that Where the proposed activity involves the use of state-owned submerged lands, DER shall not issue a permit before approval or consent of use is obtained from DNR, although DER will continue to process the application to the extent possible. (Emphasis supplied.) Except for this rule, DER has no other published instructions to applicants as to when permit times begin to run. Since the effective date of the Warren S. Henderson Wetlands Protection Act (Sections 403.91 - .929, Florida Statutes) in October of 1984, DER has not followed its policy outlined in Form 17-1.203(1), as adopted by rule. This contrary practice is based on DER's interpretation of the Henderson Act's failure to include language which was previously included in Section 253.124, Florida Statutes, to the effect that DER permits do not become effective until all other local, state and federal permits are issued. DER's internal practice that calculates the running of the permit time prior to receiving approval to use state owned submerged land is not the subject of any public notice, memorandum or instructions generally available to the public or permit applicants. DER does not require permittees to provide proof of submerged land consent subsequent to the issuance of the DER permit. Also, DER has no internal mechanism for regularly apprising itself of permits which are soon to expire. DER does process and grant time extensions of permits. Requests for time extensions are made through a simple written request, and DER will generally grant such requests if the subject permit is still valid. If the DER permit has already expired at the time that the request for an extension is made, DER requires a new permit application. In this case, petitioner did not request an extension at any time before June 1, 1987. As noted above, it was the belief of petitioner's agent that the two-year permit term would not begin to run until the required Trustee's consent was secured. It was not until June 23 or 24, 1987, that he learned that DER considered the permit to have expired on June 1, 1987. In July of 1987, petitioner did re-apply for a new permit, but DER had environmental objections to the issuance of a new permit. The petition initiating these proceedings was subsequently filed.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order holding that Permit Number 360836415 does not expire until two years from March 12, 1987, and that appropriate recognition be given to the time which has elapsed due to the pendency of the instant proceeding. Respectfully Submitted and entered this 13th day of January, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1989. APPENDIX The Proposed findings of fact Submitted by the parties have been carefully considered and are accepted, incorporated and/or Summarized in this Recommended Order, with the following exceptions: Petitioner 7. Rejected as an improper factual finding. Respondent 19. Last three Sentences rejected as contrary to the evidence. 21. Partially rejected due to the existence of Rule 17-1.203(1), Florida Administrative Code. COPIES FURNISHED: Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Richard Grosso, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
Findings Of Fact The Petitioner is the owner of upland property immediately adjacent to state-owned submerged lands. The Petitioner seeks permission to use the submerged land in order to construct an extension of his residential dock. The proposed project will extend the current dock by seventy-six feet. The Petitioner applied for all of the applicable federal, state, and local permits in order to extend his dock. He has received approval or an exemption from approval from all of the necessary agencies. The Petitioner's permit application was approved by James M. Marx on behalf of the Department on December 29, 1987, pursuant to Section 253.77, Florida Statutes. On April 12, 1988, James M. Marx sent a memorandum to his superior, Casey Fitzgerald, the Chief of the Bureau of State Lands Management, recommending that the proposed dock extension not be authorized by the Department. On June 6, 1988, the Department sent a letter to the Petitioner to inform him that the Department was unable to authorize the proposed project. The letter stated that the determination was based upon the following: The proposed extension would disrupt historical patterns of localized navigation. The extended dock, together with a 12- foot wide vessel moored at the terminal end, would preempt greater than 50 per cent of the distance between the shoreline and the offshore shoal. The length of the proposed dock is inconsistent with the lengths of existing docks in the immediate area. During hearing, the evidence presented demonstrated that the proposed dock extension would have no effect upon navigation or navigational patterns in the area. The dock extension would cause the Petitioner's dock to be substantially longer than the two adjacent docks. The dock extension is not located in an Aquatic Preserve or Manatee Sanctuary. It is exempt from Department of Environmental Regulation permitting requirements under Section 403.813(2)(a),(b),(c),(d),(e),(g),(h),(i),and (k) , Florida Statues, and the extension is no more than the length necessary to provide reasonable access to navigable water.
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact On or about April 30, 1993, a man identifying himself as "Mr. Sapp," entered into a contract with Richard Leslie Hennig, 2184 Harbor View Drive, Dunedin, Florida, for repairs to a dock located at Hennig's home. "Mr. Sapp" was a sales representative for building contractor John S. Davis II. The contract admitted into evidence at the hearing states that it is "subject to office approval." There is no credible evidence that the Respondent saw or approved the contract entered into evidence at hearing. There is no credible evidence that "Mr. Sapp" disclosed the extent of the agreement to the Respondent. It is the Respondent's standard business practice to sign a sales contract when it is approved. The contract admitted into evidence was not signed by the Respondent. The signature on the contract indicates that the contract was signed by "John Sapp." There is no evidence that "Mr. Sapp" was authorized to execute formal contracts on behalf of or to otherwise bind the Respondent without the final approval of the Respondent. Count One of the Administrative Complaint alleges that the Respondent contracted with Hennig to rebuild the boat dock for a total of $2,800 and that a deposit of $1,400 was paid at the time the contract was written. There is no credible evidence that the Respondent was involved in the agreement between Hennig and the alleged "Mr. Sapp." There is no evidence that the $1,400 deposit was forwarded to or received by the Respondent. Count One further alleges that the dock construction fails to meet applicable building codes and constitutes gross negligence, incompetence or misconduct in the practice of contracting. The evidence establishes that the pilings used in the project are undersized or missing and that lumber used in the project fails to meet the required dimensions for compliance with the codes. There is no credible evidence that the Respondent participated in the project or was responsible for the quality or sufficiency of materials used therein. Count Two of the complaint alleges that the Respondent did not obtain proper permits for the work. The evidence establishes that the permits obtained for this project were inappropriate and did not permit the extent of construction required to provide the dock sought by Hennig. There is no credible evidence that the Respondent participated in planning the project. There is no evidence that the Respondent bore any responsibility for the permits or lack thereof. The Respondent testified that "Mr. Sapp" entered into a number of "side deals" of which the Respondent was unaware. There is no evidence contrary to the Respondent's testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Pinellas County Construction Licensing Board enter a Final Order dismissing the Administrative Complaint filed against John S. Davis, II. DONE and RECOMMENDED this 27th day of September, 1994 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 27th day of September, 1994. COPIES FURNISHED: William J. Owens Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34643, 5116 John S. Davis, II 6727 126th Avenue North Largo, Florida 34643
